CALCULATION OF THE LIMITATION PERIOD FOR THE RECOVERY OF LOSSES FROM THE MANAGER IN CASE OF VIOLATION OF THE ORDER OF PAYMENTS: THE POSITION OF THE SUPREME COURT

Usually, disputes about the calculation of the limitation period when collecting losses from the manager in case of violation of the order of payments by him develop according to the following algorithm: the court completes bankruptcy proceedings, after which the creditor discovers that the bankruptcy trustee (KU) has not taken the necessary measures to pay current payments in violation of the order of satisfaction of claims and goes to court with a claim for damages. Very often, such lawsuits are brought to court by the Federal Tax Service (pr.: AS of the Volga-Vyatka District of 25.04.2023 No. F01-1457/2023 in case No. A17-5341/2021; AS of the Moscow District of 19.11.2020 No. F05-10763/2019 in case no. A40-124874/2018; 20th AAS of 19.11.2021 No. 20AP-6649/2021 in case No. A68-9446/2014, etc.)

Here there is a discrepancy in the understanding of the moment of the beginning of the limitation period. The CC refers to the provisions of Article 200 of the Civil Code of the Russian Federation, according to which the statute of limitations begins to flow from the moment when the creditor learned or should have learned about the violation of his rights. This approach means that by the time the creditor goes to court, the statute of limitations has most likely already expired, since in the opinion of the creditor, the creditor knew or should have known about the actions of the creditor that led to the claimed losses.

Creditors, in turn, declare that in this case, the limitation period should be calculated from the moment of the court ruling on the completion of bankruptcy proceedings.

The practice on this issue was unstable and contradictory until the Supreme Court of the Russian Federation issued a ruling dated 19.11.2018 No. 301-ES18-11487 in case No. A79-7505/2010. In this act, the Supreme Court of the Russian Federation sided with the creditors and determined that the limitation period for disputes on the recovery of losses from the CU in connection with its violation of the order of payments is calculated from the moment when the creditor received a real opportunity to find out that his current claims will not be able to be finally repaid due to the lack of funds in the bankruptcy estate. Such a moment for the creditor will be precisely the moment when the court issues a ruling on the completion of bankruptcy proceedings. Since the adoption of this definition by the Supreme Court of the Russian Federation, judicial practice has adhered to this approach.

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