The team of the YUKO law firm defended the interests of the client in the Supreme Court of the Russian Federation in a dispute on bringing the former general directors of a budgetary institution to subsidiary liability against the Federal Tax Service.
The Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation considered the cassation complaints of the persons controlling the debtor against the decision of the Moscow Arbitration Court dated 07/06/2022, the decision of the Ninth Arbitration Court of Appeal dated 10/03/2022 and the decision of the Moscow District Arbitration Court dated 12/22/2022 in case No. A40-133029 /2020 on the insolvency (bankruptcy) of JSC “Directorate of the Single Customer of the Gagarinsky District” (hereinafter referred to as the debtor, DSC of the Gagarinsky District).
The bankruptcy trustee of the debtor filed an application for bringing to subsidiary liability the Department of City Property of the City of Moscow (hereinafter referred to as the Department), Roslevich V.N., Tolkacheva O.D. and Martynova I.Yu. By the ruling of the court of first instance, left unchanged by the decisions of the courts of appeal and the circuit, Roslevich VN, Martynov I.Yew. were brought to subsidiary liability for the obligations of the debtor. and Tolkacheva O.D., 150 million rubles were collected from them in solidarity. The department’s request was denied.
The courts found that tax audits carried out in relation to the DEZ of the Gagarinsky district, as a result of which the debtor was charged additional arrears, as well as penalties and fines for committing a tax offense. During the audited period, the only shareholder of the debtor was the Government of the City of Moscow represented by the Department, and the functions of the sole executive body were consistently performed by: Roslevich V.N. (from 01/14/2011 to 10/17/2012), Martynov I.Yu. (from 10/18/2012 to 07/01/2014) and Tolkacheva O.D. (from 07/02/2014 to 01/16/2017).
In the court of first instance, the defendants argued that in 2016 the debtor’s assets decreased by more than one hundred million rubles compared to 2015. Also Tolkacheva O.D. drew attention to the fact that in accordance with the financial analysis of the bankruptcy trustee, the debtor began to conduct unprofitable activities only in 2018.
According to Yulia Ivanova, managing partner of the YUKO law firm, whose lawyers took part in drafting the cassation appeal, “this decision of the Supreme Court is very important for the law enforcement practice of bringing the heads of budgetary structures to subsidiary liability. In this case, we were able to prove that the cause of bankruptcy was not the debtor’s tax liability, but the creation in 2015 by the shareholder of the company of a new legal entity (GBU of the city of Moscow “Zhilishchnik Gagarinsky District”) and the transfer of a significant part of the debtor’s assets to it. The lower courts did not evaluate the evidence related to the actions of the Department of City Property, as they proceeded from the fact that the department as a whole cannot be held subsidiary liable. But even if in the case under consideration the shareholder is not subject to subsidiary liability, the arguments about the actions of the shareholder that caused harm should have been assessed in terms of their impact on the solvency of the debtor. Thus, the conclusion about the sufficiency of the actions of the general directors for the onset of objective bankruptcy and their joint and several (rather than shared) liability was made prematurely.”
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