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The Judicial Chamber on Economic Disputes of the Supreme Court was referred a case on liability of Evgeny Minaev, director and owner of Grand Pegas LLC, for the debts of the company, which, having bypassed the bankruptcy stage, had been liquidated. The matter is that in March 2017 the debt in the amount of RUB 1.43 mln was recovered from Grand Pegas LLC in favour of OTS-Credit Microlending Company LLC, but the debtor did not repay the debt and in May 2018, upon a resolution of the Federal Tax Service, it was excluded from the Unified State Register of Legal Entities as an inactive entity. A failure to file a company’s liquidation petition with a court (Article 61.12 of the Bankruptcy Law) when the director is aware of the debt, in the creditor’s opinion, is a ground to bring the director to subsidiary liability. Such issues were stated in the claim filed by OTS-Credit.

In April 2019, the Commercial Court of Kaliningrad Region refused to bring the director to liability. In the court’s opinion, it was not proved that it is the actions (omissions) of Evgeny Minaev that resulted in non-repayability of the debt to the claimant. The court of appeal and the court of cassation reversed the decision, having considered Mr. Minaev to be guilty, after all, of non-repayment of the debt since he had not filed the bankruptcy petition with the court: within the case on the company’s insolvency, it would be possible to check whether there were funds for conducting the bankruptcy procedures and to search for the money to repay debts.

Mr. Minaev disagreed with the courts’ conclusions and appealed against the decision to the Supreme Court. The claimant explained that the provisions on subsidiary liability under Article 61.12 could not apply because no company’s bankruptcy case had been initiated.

According to the ex-director, bringing him to liability was ungrounded and his guilt of causing losses to OTS-Credit Microlending Company was not proved. Evgeny Minaev believes that, in order to protect its rights, the creditor could either challenge the decision of the tax authorities on exclusion of the debtor from the Unified State Register of Legal Entities or initiate bankruptcy of Grand Pegas by itself. On top of it, the director refers to the fact that from April 2018 he was himself under a bankruptcy procedure as an individual that is why he could not fund the insolvency procedure of the entity controlled by him. Upon his complaint, the case was referred to the Judicial Chamber on Economic Disputes of the Supreme Court and its consideration is scheduled on August 18. <...>

Bankruptcy lawyer of Vegas Lex Valeria Tikhonova explains that a debtor may be brought to liability for a failure to file a bankruptcy petition only within a bankruptcy case, after its completion, or in case of termination of proceedings due to the lack of money to fund the procedure.

“If no bankruptcy petition is filed against a debtor, its controlling persons may be brought to liability only based on the provisions of the Civil Code and the laws on legal entities”, Ms. Tikhonova believes. Before incurring liability under Article 3 of the Law on Limited Liability Companies, as Mr. Pomazan points out, a set of conditions should be established: exclusion of a company from the Unified State Register of Legal Entities as an inactive legal entity, non-performance of obligations by the excluded company, and the fact that it is the director’s unreasonable or unfair actions (omissions) that resulted in such exclusion and non-performance.

Valeria Tikhonova expects that the Supreme Court’s position on Evgeny Minaev’s case will facilitate differentiation of general civil and specific (bankruptcy) grounds for liability of controlling persons and will help creditors choose the right method to protect their rights.

Full text of the article may be found here: https://www.kommersant.ru/doc/4416749