The Supreme Court recalled how to prioritize the claims of creditors correctly
Stanislav Shibulkin, Associate of Bankruptcy projects
The design bureau owed PJSC Gazprom, its shareholder, dividends for 2003–2014 in the amount of 13.2 million rubles. Therefore, in 2016, the companies entered into an agreement that the debtor will return the company money in payments of 1.6 million rubles. during the years 2016-2017. On March 13, 2017, the Arbitration Court of the Moscow Region instituted bankruptcy proceedings against the design bureau and on October 20 of the same year declared it bankrupt (case No. A41-15768 / 2017).
Gazprom insisted that the disputed debt should be repaid in the current payment mode. After all, the maturity date comes after the date of the court accepting the bankruptcy petition of the design bureau. The court has already satisfied similar requirements of the company (determination of January 11, 2018). The bankruptcy administrator objected that the requirements were not current at all, because the obligation to pay dividends appeared before the bankruptcy case was opened. But they cannot be included in the register, the manager considered, because they stem from the participation of Gazprom in the authorized capital of the debtor.
On May 29, 2019, the Moscow Region Arbitration Court agreed with PJSC and qualified the debt under the agreement as current payments.
The courts of appeal (ruling on August 7, 2019) and the district (ruling on October 31, 2019) courts decided the same. But the Supreme Court criticized the acts of lower instances and repealed them (No. 305-ES20-16).
The Supreme Court referred to the fact that the debt cannot be current, since the payment of dividends is not allowed upon the introduction of the monitoring procedure (Clause 1, Article 63 of the Bankruptcy Law). The claim of the debtor's participant to the same debtor, which arises from participation in its capital, is not a claim of the bankruptcy creditor, therefore it is repaid after the requirements of the bankruptcy creditors, the authorized body, “late” creditors and restitution claims for invalid transactions. Therefore, the date of conclusion of the agreement does not matter.
The Supreme Court also criticized the argument that the court had previously qualified similar debt as current. The Supreme Court noted that the issue of applying the rule of law is not resolved according to the rules of prejudice and the rules of compulsory judicial acts. The courts are not bound by a previous assessment of the circumstances.
<...> The moment of occurrence of the initial obligation for a specific payment, that is, 2003-2014, is of importance. And it is not so important when and how the parties changed the obligation to pay dividends. Stanislav Shibulkin, a lawyer at VEGAS LEX, agrees with this and adds: “The courts need to take into account the original nature of the debt that arose. In this case, it is a dividend payment debt, that is, corporate claims that cannot compete with the claims of independent creditors. They shall not be included in the register of creditors' claims. ”
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