The Supreme Court explained how to collect receivables in favor of a non-existent creditor

The Supreme Court of the Russian Federation (SC) determined how to collect receivables in favor of a no longer existing creditor. If a company liquidated administratively still has assets, it is possible to achieve distribution of this property. When it comes to accounts receivable, the arbitration manager (AM) has the right to collect it. Courts often refused to consider such claims, citing the liquidation of the creditor, but now it will be more difficult for debtors to evade payments, lawyers say.

The Supreme Court explained how debts can be collected if the creditor company is administratively liquidated. In November 2020, LLC “Trading House “Industrial Production Company” (PPK) was excluded from the Unified State Register of Legal Entities due to termination of activity. The Federal Tax Service has this right if the organization did not submit tax reports during the year and did not conduct transactions on bank accounts.

The sole owner of the company, Sergei Zuev, asked the court to introduce a procedure for the distribution of property, presenting evidence of the existence of a debt to PPK on the part of Luidor-Tuning LLC for the supplied auto parts in the amount of 88.66 million rubles. In November 2022, the arbitration court ordered the procedure, approving Oleg Vdovin’s AU. He filed a lawsuit to collect the debt from Louis-Tuning, but the courts dismissed the case due to the liquidation of the creditor and the absence of a legal successor. According to Art. 419 of the Civil Code of the Russian Federation (Civil Code), “the obligation is terminated by the liquidation of the legal entity (debtor or creditor),” and therefore the claim cannot be considered, the judicial acts say.

The manager appealed the refusal to the Supreme Court, the case was transferred to the Economic Collegium of the Supreme Court, which ultimately overturned all decisions, obliging the court of first instance to consider the case. In a ruling published on November 8, the Supreme Court explained that Art. 64 of the Civil Code allows an interested person or government agency to apply to the court within five years to establish a procedure for distributing the property of a liquidated legal entity. Creditors and owners of such a company can obtain satisfaction of their claims from the assets found. In essence, this means “resuming the process of liquidating a legal entity” and ensuring “settlements with interested parties,” the board explained.

The property also includes receivables, the return of which can be demanded by a court-appointed administrator who “acts on behalf” of a defunct company, as if it were still operating, the Supreme Court’s ruling says. Since the legal entity was excluded from the Unified State Register of Legal Entities “without carrying out liquidation measures” and settlements with creditors, but subsequently a procedure for the distribution of property was appointed, the courts should not have refused to consider the claim of the AU, the Supreme Court decided.

Details of the procedure for distributing the property of a liquidated legal entity were included in the Civil Code in 2014, and in 2020 the Supreme Court included a number of positions on this issue in its review of judicial practice. But new clarifications were required. Advisor to the RKT group Ivan Stasiuk notes that the number of legal entities excluded from the Unified State Register of Legal Entities administratively is growing: according to the Federal Tax Service, in 2019 there were 83 thousand, in 2020 – 64 thousand, in 2021 – 330 thousand, in 2022 – 240 thousand. In this regard, “the issue of protecting the interests of the owners and creditors of such companies has become urgent,” the lawyer adds. The procedure for distributing property has become more common, admits Alexey Antonov. AU Anton Sychev says that sometimes owners or creditors “may, for various reasons, skip the exclusion of a company from the Unified State Register of Legal Entities and find themselves in a situation where the asset is here, but its owner does not legally exist.”

“Recently, both legislation and the courts have provided more and more tools to combat unscrupulous debtors, so it is logical that the institution of asset distribution has received a second wind,” notes ProLegals partner Elena Kravtsova. In her opinion, the decision of the board has “great precedent significance.” The key conclusion, says the lawyer, is that the Supreme Court “reduced the application of Art. 419 of the Civil Code only to the liquidation of the debtor, and in the event of liquidation of the creditor, this rule no longer applies if there are interested parties claiming his property.” “For a debtor, the liquidation of his creditor is an external event; he should not be exempt from paying the debt,” agrees Ivan Stasiuk.

However, Alexey Antonov clarifies, a number of issues remain unresolved. Thus, it is not clear whether the powers of the AC extend to any property identified from a liquidated legal entity or only to assets due to the discovery of which the procedure was introduced.

Anna Zanina