Pension as a presumption of innocence – Finance – Kommersant

The Supreme Court of the Russian Federation (SC) will have to decide whether to soften the approach for bankrupt pensioners due to violations related to ignorance of the law. The dispute on whether it is possible to write off the debts of an elderly woman who spent on herself and her disabled son an amount exceeding the subsistence level and did not report part of the property was submitted to the Economic Board. Some lawyers support concessions for “unprotected social groups”, but a number of experts do not think this is right.

The Supreme Court will evaluate the violations of the bankrupt pensioner and decide whether they are serious enough to refuse to write off debts following the procedure. In October 2017, Tamara Volkonskaya was declared bankrupt, Elena Savchuk became the only registered creditor with claims for 3.7 million rubles. In the fall of 2018, the financial manager (FinU) was replaced, as he did not search for property well and did not control the spending of the pension. In May 2022, at the end of the procedure, the new FinU and the creditor asked not to write off debts, since the pensioner sold her son-in-law VAZ-21074 of 2002 and disposed of money in excess of the subsistence level.

But the court of first instance released the pensioner from obligations.

The decision notes that out of 3.7 million rubles. registered debt were repaid 724.8 thousand rubles. (about 20%), which is above the average level in the bankruptcy of individuals. The debtor really spent her pension and bank deposit at her own discretion (for a total of 260 thousand rubles), but this happened through the fault of FinU and the bank that did not block the account, for which they were charged losses to the bankruptcy estate. 25 thousand rubles were also collected from the buyer-in-law for the car, so all the damage was reimbursed. The appeal agreed with this decision.

But the court of cassation opposed the cancellation of debts, seeing the bad faith of the bankrupt in the fact that part of the property was hidden from FinU, and out of 19.1 thousand rubles. pensions 8.2 thousand rubles. had to be given to the bankruptcy estate. The debt to the creditor arose due to the termination of the contract for the sale of an apartment by the debtor in favor of the Tyumen company. The apartment eventually remained with Tamara Volkonskaya, but received 1.9 million rubles. the pensioner did not return, which the cassation judged was not in her favor.

Tamara Volkonskaya complained to the Supreme Court, stating that she had not shied away from fulfilling her obligations.

She decided to sell the apartment, because she needed money for the treatment of her son, and since 2008 she has been paying the debt under the canceled deal at the expense of her only income – pensions. The debtor emphasizes that she did not lead a luxurious lifestyle, she lives with her disabled son, the money went to “minimal necessities of life.” According to her, “due to her advanced age (76 years) and lack of relevant knowledge,” she did not understand that it was necessary to transfer part of the pension to the bankruptcy estate, and the first FinU did not withhold funds from her. Tamara Volkonskaya also considers it necessary to take into account the circumstances of the debt: after the termination of the transaction with the apartment, the company collected money from the debtor in court, and then ceded the right to claim to its lawyer Elena Savchuk for only 10 thousand rubles. The Economic Collegium will consider the case on March 30.

Orchards adviser Azat Akhmetov says the issue of bankruptcy of pensioners is “urgent and requires increased attention”, and the future position of the SC may affect “the degree of protection of people who do not have special knowledge, obviously do not lead a luxurious lifestyle and do not try to avoid penalties.” The arbitration manager Sergey Domnin believes that the Supreme Court will support the pensioner, following the “paternalistic approach to such categories of debtors.” In 2022, he clarifies, the Supreme Court “allowed bankrupt pensioners to receive a pension in any convenient way,” limiting FinU only “to the right to ask the debtor to transfer funds in excess of the subsistence minimum to the bankruptcy estate.”

Anastasia Shamshina, managing partner of K`AMELAWT, believes that “you can’t put a beneficiary or top manager of a multibillion-dollar enterprise who seeks to withdraw assets from one another, and a pensioner who is mired in debt as a result of trying to save her disabled son.”

Cassation, according to her, “like a guillotine mercilessly cut off the hopes of a 76-year-old pensioner to write off debts,” but the meaning of a citizen’s bankruptcy is the opportunity “to legally relieve an overwhelming financial burden and return to a normal economic life.” Orchards adviser Azat Akhmetov agreed that the pensioner “deserves a release.”

However, not all lawyers agree with such a “social approach”. “To cancel the principle “ignorance of the law does not exempt from responsibility” even for pensioners in bankruptcy is too much,” emphasizes Sergey Domnin. The lawyer of KA Delcredere, Alexander Spiridonov, admits that the violations were not a mistake: “The debtor herself initiated bankruptcy, the date for the sale of the car to her son-in-law is ten years earlier, the argument about her ignorance about the transfer of pension and contribution to the manager is also questionable.” At the same time, Mr. Spiridonov considers it necessary to assess the integrity of the creditor, whose actions “are not aimed at repaying the debt, but at trying to make money on the bankruptcy procedure.” It is also unclear, Sergey Domnin adds, whether the bankrupt should be punished “if the losses of the bankruptcy estate are somehow compensated.”

Ekaterina Volkova, Anna Zanina