The Supreme Court will consider the dispute over the payment of interest to the arbitration manager

The Supreme Court (SC) is trying to find a balance in disputes about the percentage remuneration to the arbitration manager (AI) for satisfying the claims of creditors. The case of such a payment in favor of the AU was transferred to the Economic College, which brought the persons controlling the debtor to subsidiary liability, which made it possible to repay part of the debt. Lower authorities denied interest, noting the absence of extraordinary actions on the part of the manager and only partial payment of the debt. But based on AU’s complaint, the case will now most likely be reconsidered. Lawyers note that courts often reduce the amount or completely reject managers, and hope for a change in approach.

The Supreme Court took up the dispute regarding the payment of interest to AU. Art. 20.6 of the bankruptcy law gives the manager the right to receive interest depending on the share of repayment of creditors’ claims – the higher this share, the greater the interest (maximum 7%).

As part of the insolvency case of Derzhava LLC, the bankruptcy trustee asked to pay him interest in the amount of 2.4 million rubles. for partial satisfaction of the claims of the debtor’s creditor. AU referred to the fact that he had achieved the holding of four citizens controlling the debtor to subsidiary liability for 99.4 million rubles. Of this amount, 15.99 million rubles. were ceded to the Federal Tax Service by decision of the service itself. Tax officials received a writ of execution, sent it to the bailiffs, who wrote off 8 million rubles from the defendants’ accounts. Thus, part of the bankrupt’s tax debts was repaid, and in connection with this, the AU asked to approve the amount of interest.

The Arbitration Court of the Moscow Region granted the AU’s petition, noting that the manager “took active steps to repay the debt.” But the appeal with cassation was rejected. The courts noted that the debt to the Federal Tax Service was not fully repaid, and the AU’s filing of a claim for a subsidy in itself is its direct responsibility and a standard action. In addition, the defendants did not voluntarily repay the debt; the payment was made during enforcement proceedings by bailiffs, which was initiated at the request of the Federal Tax Service. Therefore the manager is not entitled to interest, the courts found.

AU filed a complaint with the Supreme Court, pointing out that the courts incorrectly applied the provisions of Art. 20.6 of the bankruptcy law, which give the right to incentive compensation. According to the manager, the repayment of debts to the Federal Tax Service was achieved precisely thanks to his actions, since without bringing the controlling persons to subsidiary liability, the tax authorities would not have received this money. The enforcement of the court decision by the bailiffs in the part assigned to the Federal Tax Service is beyond the control of the AU, but this “should not serve as a basis for refusing to pay the manager remuneration,” the complaint says. The case was transferred to the Economic Collegium of the Supreme Court, the hearing is scheduled for March 21.

The practice with regard to interest payments to operating companies in recent years has not been in their favor, lawyers say. “Reductions in interest rates have become a common occurrence in bankruptcy cases,” notes Anton Krasnikov, partner at Sotheby’s law firm. “There are also frequent cases of complete failure of the AC,” adds Valery Zinchenko, senior partner at Pen & Paper.

If earlier the courts took into account the cause-and-effect relationship between the actions of the management company and the repayment of the bankrupt’s debts, then recently, according to Anton Krasnikov, “the courts are increasingly interpreting the rules on interest in the direction of the need for the manager to perform extraordinary actions in order to obtain them.” The motives are something like this: “you did everything right, but it’s still not enough,” the lawyer clarifies.

Meanwhile, according to Fedresurs, in 2023, creditors received nothing from bankrupt citizens in 69% of cases, and from legal entities-debtors in 54% of cases. The absence of debt repayment means that the insurance company will not receive interest for the bankruptcy of such a debtor and can only count on a fixed fee (30 thousand rubles per month for the bankruptcy procedure).

“There has always been a problem with finding an agency to handle the bankruptcy of legal entities without assets, but usually there are managers who are ready to work for a fixed fee or then collect costs from the bankruptcy initiator,” Sergey Domnin tells the agency. The head of the bankruptcy practice of Yur-Project, Viktor Panchenko, confirms that many independent companies work on “streaming procedures”, earning money due to their number.

At the same time, “the fixed part of the remuneration extremely rarely covers all the costs that the insurance company incurs for the bankruptcy procedure,” notes Valery Zinchenko. In this regard, the lawyer adds, receiving interest is of great importance for managers. “The main thing for the right to interest is at least partial satisfaction of the creditor’s claims, and it doesn’t matter in what way,” says Viktor Panchenko.

Here the creditor himself chose to present the writ of execution to the bailiffs, the AU could not influence this choice, adds Sergei Domnin, “especially since the manager is not a bailiff and cannot take active measures against debtors in enforcement proceedings (except to ask the court to seize their property )”.

“The argument that the AC acted standardly within the law, and therefore does not deserve interest, does not look very logical,” says Anton Krasnikov. In his opinion, “the refusal of appeal and cassation is unfounded, and the law lacks the argumentation on which the courts base judicial acts of refusal.” “Moreover, submitting an application to attract a subsidiary in itself is not the absolute responsibility of the manager,” notes Viktor Panchenko.

“Interest is paid not for extraordinary actions, but for obtaining results. In this case, the result was that the tax claim was partially satisfied. In addition, the law does not make remuneration dependent on the labor intensity of the actions of the AU,” points out the head of the council of the Union of Arbitration Managers of the NCRB Valeria Gerasimenko. Although in practice, she admits, courts reduce percentages if they are not proportionate to the work performed by the AC, this approach is also reflected in the review of the practice of the Supreme Court dated October 11, 2023 (see “Kommersant” dated October 13, 2023). Remuneration can also be reduced or deprived for illegal actions of the AC, adds Viktor Panchenko.

Lawyers believe that, most likely, the refusal decisions of the courts will be overturned by the Economic College. Anton Krasnikov expects that “the Supreme Court will change the direction of practice and stop the courts from overly broad interpretation of the conditions for managers to receive interest.” Valery Zinchenko hopes that the new positions of the Armed Forces will allow the AU to “count on a more balanced and objective approach to assessing its work and determining the amount of remuneration due.”

Anna Zanina