Ingrad will pay a fine for not agreeing with the Federal Antimonopoly Service of the failed deal with Sminex
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Despite the fact that Ingrad failed to sell the site on Luzhnetskaya Embankment in the center of Moscow to Sminex due to the outbreak of hostilities in Ukraine, the developer is forced to pay a fine for not coordinating this deal with the Federal Antimonopoly Service (FAS). The arbitration court, where the developer tried to challenge the decision of the service, supported the agency. If Ingrad managed to prove that the actual control over the legal entity on whose balance sheet the site is located did not pass to the buyer, the company could avoid FAS sanctions, lawyers say.
Ingrad Group of Companies Roman Avdeev failed to challenge the FAS fine for the transaction for the sale of Helios Investments LLC (on its balance sheet is 5.2 hectares on Luzhnetskaya Embankment in Khamovniki in the center of Moscow) without obtaining approval from the service. This follows from the decision of the Moscow Arbitration Court, published on June 29 in the file of arbitration cases. The FAS did not respond to Kommersant’s request, the Ingrad Group declined to comment.
In December 2021, Ingrad transferred Helios Investments to the Sminex structure of Alexei Tulupov, OOO Specialized Developer Vtoroy, having previously submitted a request for approval of the transaction to the Federal Antimonopoly Service. But the parties signed the agreement without waiting for the decision of the department. After the start of the special operation of the Russian Federation in Ukraine, Sminex decided to abandon the deal. In March 2023, by mutual agreement, the parties terminated the agreement on the sale of the asset and Helios Investments returned to the control of Ingrad.
Despite the failure of the transaction, the seller of the asset received a fine from the FAS, since for three months – from the end of December 2021 to March 2022 – the legal entity was under the control of Sminex. The service issued a decision on the fine in February 2022, shortly before the official termination of the agreement.
Challenging the legality of the FAS decision in court, Ingrad referred to the fact that in its actions “there is no objective side of the administrative offense.” Since, in fact, nothing has changed and “the company disposed of 100% of the shares in the capital of Helios Investments LLC both before the conclusion of the sale and purchase agreement and after its termination”, there was no impact on competition in the market. But the court, rejecting the claim, admitted that the arguments of “Ingrad” cannot serve as a basis for the cancellation of the fine and “are aimed at evading administrative responsibility.”
Antimonopoly lawyer Natalya Pantyukhina says that she has not seen cases when the FAS fined for a deal that was not agreed with the service, which fell through. At the same time, according to the partner of the Rustam Kurmaev and Partners law firm Vasily Malinin, the subsequent disruption of the transaction has no legal significance for holding Ingrad liable, since the norms of the law on protection of competition on harmonization were violated. The disruption of the deal is not a significant circumstance, which in itself allows the court or the FAS itself to cancel the fine, Oleg Moskvitin, partner at Muranov, Chernyakov and Partners, agrees. In addition, Ingrad did not receive the department’s consent to the reverse transfer of a stake in Helios Investments from Sminex structures, Alina Shleeva, a lawyer at the Propositum Law Office, notes.
Nevertheless, Ms. Pantyukhina believes that the FAS should evaluate the real consequences for competition in the market, despite the formality of the requirements for the approval of transactions. According to her, in order to avoid a fine, it was necessary to withdraw the application from the consideration of the FAS, but “the participants in the transaction themselves should have taken the initiative here.”
If Helios Investments, under the terms of the agreements, was under the real control of Ingrad all this time and the developer gave instructions to management and determined the conditions for the company’s work, then we can say that no approval was required, Natalya Pantyukhina believes. In this case, she continues, there were no changes in the market and no “redistribution of market power” in favor of a new person. Knowing about the disagreements with the FAS in assessing the facts, according to Oleg Moskvitin, Ingrad should have obtained independent expert opinions to confirm its case and thereby strengthen its position in the litigation.
Shopping centers will increase taxes
Rosreestr sees no need not to reassess the cadastral value of shopping centers, as requested by the Union of Shopping Centers (STC). This follows from the department’s response to Kommersant’s vice president of the STC Pavel Lyulin. Rosreestre confirmed the authenticity of the letter.
As Kommersant reported on June 1, STC appealed to the government of the Russian Federation with a request not to increase the cadastral value of retail facilities, which is the taxable base for such real estate. Due to the crisis, the owners of shopping centers fear that their tax burden may increase, which is critical in the face of a reduction in store traffic, including due to a decrease in purchasing power.
Rosreestr points out that the cadastral value in itself does not determine the degree of tax burden on the owner of the property. The Office believes that the degree of the relevant tax burden, its affordability and proportionality should be determined by tax rates, deductions and benefits. According to Pavel Lyulin, after the revaluation of the cadastral value of shopping centers, the increase in the tax burden for their owners may be from 20% to 40% as early as 2024, and to compensate for these costs, facility managers will have to reduce operating costs and personnel costs.
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