Pleasant arbitrariness of fate – Newspaper Kommersant No. 207 (7408) of 11/09/2022

The Supreme Court of the Russian Federation (SC) softened the approach to the subsidiary liability of persons controlling the debtor (CDL) in case of exclusion of the organization from the Unified State Register of Legal Entities for failure to file reports. The Supreme Court considered that administrative liquidation in itself in the presence of debts does not mean bad faith of the CDL, and creditors must prove that they did not receive the money precisely because of the behavior of the head or owner of the company. Some lawyers support the position of the Supreme Court, but a number of experts believe that it will “condone bad faith.”

On November 4, the Supreme Court published a decision concerning subsidiary liability for the debts of a liquidated company. In July 2019, IE Viktor Atroshenko leased a land plot to Maksistroy LLC, but soon discovered that it was not being used for its intended purpose and “has actually turned into a sand pit.” In September 2019, the IP terminated the lease agreement, and in November 2020 it sued the LLC for 2.68 million rubles. losses (the cost of land reclamation, rent debt and examination costs). But he failed to get the money – in December, Maksistroy was expelled from the Unified State Register of Legal Entities.

The entrepreneur demanded that Roman Yermolaev, the sole participant and general director of LLC, be held liable for the company’s obligations. The plaintiff emphasized that the organization was expelled from the Unified State Register of Legal Entities due to the lack of movement of funds on the accounts and failure to submit reports, so the general director should be liable for losses.

The Moscow Arbitration Court granted the claim, and the appeal agreed with this. They applied in the dispute the position of the Constitutional Court of the Russian Federation (CC) dated May 21, 2021 in the case of Galina Karpuk on simplifying the prosecution of CDL in the event of exclusion of the company from the Unified State Register of Legal Entities. According to the courts, being the sole owner and manager, Roman Yermolaev, “acting reasonably and in good faith, could not have been unaware of the need to submit documents to the authorized bodies, which indicates the unfair behavior of the defendant.” This behavior “resulted in the exclusion of the legal entity from the Unified State Register of Legal Entities, depriving the individual entrepreneur of the opportunity to collect the debt.” In addition, the lease agreement was concluded at a time when the company already met the signs of an inactive legal entity.

But the district cassation rejected the claim, considering that the position of the Constitutional Court allows to prosecute only on the requirements of individuals not related to entrepreneurial activity. Mr. Atroshenko complained to the Supreme Court, insisting that the ruling of the Constitutional Court does not prohibit creditor-entrepreneurs from making similar demands. The case was transferred to the economic board, which sent the dispute for a new consideration.

Although it was the creditor who achieved the revision of the case, the decision of the board turned out to be, in fact, not in his favor. On the one hand, the Supreme Court clarified that the ruling of the Constitutional Court is also applicable to disputes over the applications of entrepreneurs. At the same time, the exclusion of an organization from the Unified State Register of Legal Entities “cannot serve as irrefutable evidence of the commission of unfair actions by the CDL,” the Supreme Court considered. The creditor must prove the existence of losses, the dishonest or unreasonable nature of the behavior of the CDL and that the behavior of the latter became a “necessary and sufficient reason for the impossibility of repayment” of the debt. In addition, it is not known whether the individual entrepreneur used the right to file an application with the tax office so that the debtor company would not be excluded from the Unified State Register of Legal Entities, as well as it is not clear whether the LLC had enough property at the time of signing the lease to pay off the debt. The courts will have to find out all this in a new consideration of the case.

Elena Gladysheva, Managing Partner of RI-Consulting, considers it right to prove the connection between the actions of the CDL and the impossibility of repaying the debt. According to Denis Danilov, head of projects at the RKT consulting group, VS “is struggling with the approach in which damages will be collected from managers and owners by default.”

At the same time, ProLegals lawyer Maxim Lukhmanov finds the position of the Supreme Court “extremely controversial”: “The problem is that the economic board does not see anything reprehensible in the behavior of the CDL, which allowed the company to be liquidated as inactive in the presence of unfulfilled obligations to creditors.” In his opinion, “the absence of account transactions and non-reporting during the year already suggest that the controlling person has abandoned the company to its fate.” The new approach of the Supreme Court, the lawyer believes, puts the CDL in a privileged position and can “indulge their dishonest behavior.”

Ekaterina Volkova, Anna Zanina