Commentary by Dmitry Sibilev on PRObankruptcy
In the bankruptcy case of Tomgiprotrans JSC (case No. A67-10015/2020), the bankruptcy trustee filed a claim to bring the former managers and beneficiary of the company to subsidiary liability, as well as to recover damages from them on the grounds of invalid payments in favor of affiliated companies for a total of more than 46 million rubles, shortly before bankruptcy.
In relation to one of the former directors - R.V. Akulov - the ground was failure to transfer the debtor's property reflected in the balance sheets (220 units in the amount of 21.3 million rubles).
The courts of first and appellate instances refused to bring to subsidiary liability, but recovered damages from the defendants.
The cassation instance upheld the judicial acts in relation to the defendants who participated in the withdrawal of liquid assets, and in relation to Akulov R.V. - overturned, sending a separate dispute for a new trial: the courts did not examine the arguments about the seizure of balance sheets from the debtor's office by the investigator, as well as the specifics of the defendant's employment:
- nominal nature of the position (part-time work at 0.3 of the rate for the purpose of formal reflection in the Unified State Register of Legal Entities (EGRUL));
- territorial remoteness;
- limited powers.
Dmitry Sibilev, senior associate of Insolvency & Bankruptcy practice area at Infralex, paid attention to the present vector of judicial practice of more balanced and careful assessment of participation of each controlling person in the context of subsidiary liability. The courts are to examine the actual powers and the real actions of the managers, not limiting themselves only to formal data. Dmitry believes the approach will reduce the risk of unjustified penalties and protect the rights of defendants who do not make business decisions in the company.
“At the same time, the risk of abuse of rights by real beneficiaries who can use the mechanisms described by the court (for example, moving to other regions, changing job salaries) to hide their status and evade responsibility is not excluded,” the lawyer warns.