The Supreme Court will determine the responsibility of state bodies for the bankruptcy of their commercial structures

The Supreme Court of the Russian Federation (SC) will decide who can be brought to subsidiary liability for bringing an OJSC owned by the state or a municipality to bankruptcy. The lower courts decided that the authorities to which the organization is legally registered cannot bear such responsibility in principle. Lawyers, on the other hand, believe that there are no objective reasons for such a position.

The Supreme Court will decide on the subsidiary liability of the owner of the JSC, if it is a public legal entity (Russian Federation, subject of the federation, municipality). The story began with a tax audit for 2012–2014 of the Directorate of the Single Customer of the Gagarinsky District (DEZ), as a result of which the companies accrued 102.13 million rubles, including arrears, penalties and fines. Later, DEZ received tax claims for another 22.94 million rubles. for the first three quarters of 2015. Vladimir Roslevich, Igor Martynov and Olga Tolkacheva were directors of the OJSC during the periods under review. The sole owner of the debtor is the Moscow Property Department.

In December 2020, at the initiative of the tax authorities, DEZ was declared bankrupt under a simplified procedure, since at the time the case was initiated by the court, the company was already in the process of liquidation. The bankruptcy trustee of the debtor demanded that all former directors and the department as the owner be brought to subsidiary liability for the debts of the OJSC.

In July 2022, the Moscow Arbitration Court recovered a total of 150.64 million rubles from the ex-heads of the DEZ, but refused the claim against the department, considering that it “in principle cannot be the subject of subsidiary liability, since it is a state authority.”

In relation to the directors, the court proceeded from the “presumption of bringing the debtor to bankruptcy by their joint actions.” The law provides for this if the main tax debt in the bankruptcy register exceeds 50% of all third-priority creditors and arose as a result of a tax offense. For DEZ, the requirements of the Federal Tax Service in the register amounted to 97%. The appeal and cassation upheld the decision.

Vladimir Roslevich and Olga Tolkacheva appealed these judicial acts to the Supreme Court, disagreeing with imposing joint and several liability on them. They insisted that there were no grounds for this “in the absence of evidence of the joint intent of all three successive directors”, so the liability of each should be limited to the period when he led the company and the debts that arose then.

In addition, Olga Tolkacheva stated that the reason for the bankruptcy of DEZ was not additional tax charges, but “the creation in June 2015 by the department of a new legal entity (GBU of the city of Moscow “Zhilishchnik Gagarinsky District”) with the transfer of a significant part of the assets to it.” In 2014, the assets of DEZ amounted to 189.96 million rubles, and in 2016 – 76.57 million rubles. Moreover, based on the analysis of the manager, DEZ has become unprofitable only since 2018. For these reasons, the case was transferred to the Economic Board of the Armed Forces, the consideration is scheduled for July 13.

The most important practical issue that the SC must decide concerns the responsibility of the department. The law provides for the property (subsidiary) liability of the owner for the debts of state and municipal unitary, as well as state-owned enterprises, explains Sotheby’s partner Anton Krasnikov. But, lawyers say, courts often refuse even in such situations. It is even more difficult to achieve subsidiary liability of the owner in the event of bankruptcy of an LLC and OJSC owned by the state or municipality – it is not directly established in the law.

BGP Litigation Senior Associate Yulia Efishova believes that priority should be given to the bankruptcy law, which presumes the liability of the controlling debtor and does not contain exceptions for the state and its bodies. To talk about the fundamental impossibility of bringing a government body to subsidiary liability “is wrong, based on the principle of equality of participants in the turnover, regardless of the status of such a participant,” Valery Zinchenko, senior partner at Pen & Paper, is sure. Anton Krasnikov clarifies that this is not the responsibility of a specific department, but of the city of Moscow.

Valery Zinchenko emphasizes that the transfer of assets of one legal entity to another, which leads to signs of bankruptcy, is the most common ground in the practice of bringing the company owner to subsidiary liability. Although the redistribution of assets within a group of legal entities of one owner may also pursue reasonable goals, Anton Krasnikov clarifies. Ms. Efishova believes that the courts needed to investigate “whether the transfer of assets in favor of Zhilischnik was the reason for the bankruptcy of the OJSC, and if so, then we can talk about the responsibility of the department.” In addition, she notes, the owner should be responsible “for the election and control of the actions of the directors appointed by him.”

Ekaterina Volkova, Anna Zanina