The Supreme Court will decide whether it is possible to obtain the right to use subsoil from the deceased

The Supreme Court of the Russian Federation (SC) will decide whether it is possible to inherit a license for the use of subsoil. After the death of the entrepreneur, his wife and heiress, who received the status of an individual entrepreneur, asked to reissue the permit for her. The regional Ministry of Industry refused, but the arbitration courts considered the inheritance possible by analogy with the re-registration of the right to subsoil use to the successor company. Following a complaint from the ministry, the dispute was referred to the Economic Collegium of the Supreme Court. Lawyers note that the law does not directly prohibit the transfer of a license by inheritance, but they themselves consider this possibility controversial.

The Supreme Court will consider the issue of re-issuing a license of a citizen-entrepreneur to use subsoil plots to his heir. The Subsoil Law does not regulate the issue. In 2016, individual entrepreneur Sergey Tarasov, following an auction, received a license for geological study, exploration and production of dolomites (except for those used in the metallurgical, glass and chemical industries) at the Nikolsky-2 site in the Chelyabinsk region for a period until December 2041. For this activity, the local administration leased him a plot of land with an area of ​​498 thousand square meters. m. In October 2020, Sergei Tarasov died, and in February 2021, the regional Ministry of Industry terminated the license ahead of schedule.

However, the wife of the deceased, Galina Tarasova, first obtained in court the cancellation of the ministry’s order, and then asked to re-issue the license for herself. Having received a refusal, Mrs. Tarasova challenged it in court, citing the fact that she is the only heir of her husband and has the status of an individual entrepreneur, which allows her to obtain the right to subsoil use. The Ministry of Industry objected that under Art. 1.2 of the Law “On Subsoil” “subsoil plots cannot be the subject of purchase, sale, donation, inheritance, contribution, pledge or alienation in any other form.” Officials explained that a license can be reissued only on the grounds expressly specified in the law, for example, this is allowed in the event of reorganization or bankruptcy of a legal entity if there is a successor who meets certain requirements.

Arbitration courts of three instances satisfied the claim of Galina Tarasova. According to the courts, the death of a citizen is not grounds for early termination of a license, since, unlike the liquidation of a legal entity, it allows for universal succession in inheritance. Otherwise, this leads to “the unjustified use of analogous measures of state coercion and a violation of the principle of formal equality of various categories of subsoil users,” the judicial acts say.

We are talking about inheritance not of the subsoil plot itself (the law prohibits this), but of the right to use: the joint money of the spouses was spent on exploration and development, the courts emphasized. In addition, the right to subsoil use was issued following an auction and is not directly related to the personality of the deceased, and therefore can be transferred to another person. The law, in particular, allows for the re-issuance of a license during the reorganization of a legal entity-subsoil user in the case of universal succession, so the courts decided that it would be fair to apply this rule “by analogy” to the heir of an individual entrepreneur.

The regional ministry filed a complaint with the Supreme Court, insisting that the issuance of a license is not regulated by civil law, but is related “to the exercise of authority.” According to the department, “due to its administrative nature, the right to use subsoil cannot be attributed to the hereditary mass and passed on by inheritance,” moreover, in the inheritance certificates issued to the spouse there is no indication of the transfer of the right.

Court decisions “create an incorrect practice” that allows the license to be reissued to a citizen-heir of a subsoil user, and also “legal uncertainty appears if there are several heirs,” since it is unclear how to divide this right, the complaint says. Separately, the Ministry of Industry noted that in order to obtain a license, the law requires a number of documents that the wife of the deceased did not submit, in particular a license to carry out surveying work or an agreement with those who have it. Based on these arguments, the case was transferred to the Economic College of the Supreme Court; consideration is scheduled for April 24.

The Supreme Court will consider such a case for the first time, says ProLegals lawyer Asiya Shamigulova. She notes that the Law “On Subsoil” generally “does not cover the situation of re-issuing a license from one individual entrepreneur to another entrepreneur or legal entity,” while its rules, in principle, “allow the transfer of subsoil use rights in the manner of universal succession.” Managing partner of the Laboratory of Law company, Ilya Poznansky, allows two options for explaining the lack of regulation for individual entrepreneurs – either this is “an omission, a gap in the law,” or the legislator deliberately did not write down the possibility of re-issuing a license in the event of the death of an individual entrepreneur, “in order to limit its transfer to third parties.” .

Mrs. Shamigulova supports the position of Galina Tarasova, pointing to “the absence of negative consequences in the form of an increase in the number of subsoil users” (there is only one heiress) and “the legitimate interest of the spouse to preserve the family business.” But managing partner of Zharov Group Evgeny Zharov believes that the law provides an “exhaustive list of grounds” for re-issuing licenses and since “there is no direct permission” to transfer the right to subsoil use in the event of the death of an individual entrepreneur, then “this right cannot be inherited.”

Legalplant partner Evgeniy Pugachev draws attention to the nuances of inheritance: “Only an individual or a legal entity can be heirs, and our legislation and practice do not know the heir-individual entrepreneur.” Thus, Mr. Pugachev explains, only a citizen as an individual can inherit something, while at the same time, a license for subsoil use is not issued to individuals.

If the Supreme Court does not allow inheriting a license, then citizen entrepreneurs in the future should take into account the risk of their own death and consider the advisability of using subsoil through a legal entity, in which heirs can receive a share, argues Asiya Shamigulova. But it is best, lawyers believe, to resolve the issue of the possibility of re-issuing a license issued to an individual entrepreneur directly in the law “On Subsoil”.

Anna Zanina, Jan Nazarenko