Pay for the introductory procedures – Newspaper Kommersant No. 203 (7404) dated 11/01/2022

The Supreme Court of the Russian Federation (SC) decided who should pay the remuneration to the arbitration manager (AC) in the event of termination of the bankruptcy case due to the company’s lack of money even for the procedure. If the bankruptcy is initiated by the debtor himself, the costs are borne by its owners. Experts welcome this approach, noting that otherwise the financing of bankruptcy falls on the AU, which would refuse to conduct obviously unpromising procedures.

On October 27, the Supreme Court published the decision on the case on reimbursement of expenses of the AC. An important position for practice was expressed in the case of TEVOS LLC, which in November 2018 filed for its own bankruptcy. The Arkhangelsk Region Arbitration Court opened a case and introduced a monitoring procedure in December. But the debtor did not have the funds to conduct bankruptcy, and in April 2019 the case was closed.

Due to the company’s lack of money, Natalya Savelyeva, who was appointed manager, was unable to receive payment for the procedure. In January 2020, Mrs. Savelyeva sued 140.4 thousand rubles. from the debtor, including 119.8 thousand rubles. AU rewards. However, “due to the impossibility of establishing the location of the LLC and its property”, it was not possible to recover the money, after which Natalya Savelyeva asked the court to lay these costs on the head and sole participant of the company, Dmitry Finozhenkov.

Arbitration courts of three instances rejected the AC’s claim. The courts noted that Mr. Finozhenkov did not act as an applicant in the bankruptcy case and did not agree to finance the procedure, he also did not make a decision to liquidate the LLC.

According to the courts, the manager can recover his remuneration only through “bringing the controlling person to subsidiary liability.”

Natalya Savelyeva appealed to the Supreme Court, believing that the courts had incorrectly applied articles 61, 62 of the Civil Code of the Russian Federation (they oblige the founder who decided to liquidate the company to reimburse the costs of this procedure). This led to the fact that “a debtor’s participant can shift the costs of liquidating a legal entity controlled by him to the AC.” As a result, the Economic Collegium of the Armed Forces canceled the decision and recovered 140.4 thousand rubles from Dmitry Finozhenkov. in favor of AU.

The Board emphasized that the AU is entitled to remuneration, it is paid at the expense of the debtor or the applicant in the case. If the debtor does not have funds, “the necessary expenses can be attributed to its founders (participants)”, the Supreme Court clarified. This happens “by virtue of the status and is not due to either the fact of filing a bankruptcy petition, or the adoption of measures to create a liquidation commission,” the Supreme Court emphasized. In this case, it will not be possible to recover the costs of the AC through subsidiary liability, since the non-repayment of voluntary court costs for the liquidation of a legal entity “does not constitute a violation that entails subsidiary liability in bankruptcy.”

Lawyers support the decision of the Supreme Court. Refusing to reimburse expenses at the expense of the LLC participant, “the courts used formal arguments” and as a result “the manager was punished for the lack of property from the debtor,” says Polina Vizgina, a lawyer at Gurichev, Malinin and Partners.

The position of the Supreme Court “helped prevent a mistake in practice, which could later become a problem for managers in cashless procedures,” adds Victoria Tsarevskaya. According to her, the approach of the lower courts could seriously “reduce the number of managers willing to consent to appointment in similar procedures.”

Now business owners should understand that when a company files for bankruptcy, they will have to bear the costs of the procedure, says Denis Danilov, head of projects at the RKT consulting group. However, he warns that if a company member is a nominee, then getting money from him “may be problematic.”

Valeria Gerasimenko, the general director of the Union of Autonomous Organization SRO “Northern Capital”, is sure that the participants (shareholders) of the debtors will not pay voluntarily, but the recovery through the court will now become “with a predictable result”. Since the Supreme Court does not directly link its decision to the one who initiated the bankruptcy, it is theoretically possible to impose the costs of the AC on the owners of the companies, even if the bankruptcy of the debtor was initiated by a creditor who cannot pay, Ms. Gerasimenko believes. At the same time, Victoria Tsarevskaya clarifies, the owners of the company can reduce the amount of payments in favor of the AC if they prove the improper performance of their duties.

Ekaterina Volkova, Anna Zanina