IF THE DEBTOR PROVIDED APARTMENTS TO HIS EMPLOYEES, THEN THIS IS A COMMON BUSINESS ACTIVITY

As part of the bankruptcy case (No. A40-120633/14), the manager appealed to the court with an application to challenge the barter agreement concluded between the debtor and the defendants (citizens), under which the debtor transferred a 3-room apartment to the defendants in exchange for another 3-room apartment.

In support of the statement, the manager referred to the unequal value of the exchange.

The courts of three instances, satisfying the application, proceeded from the fact that the market value of the apartment alienated by the debtor was three times higher than the market value of the apartment he received from the defendants, which indicates the unequal value of the counter-provision. The courts noted that the actions of a person acquiring property at a price clearly lower than the cadastral and market price cannot be called prudent and cautious.

The Court of Appeal, supporting the conclusions of the court of first instance, also rejected the defendants' arguments about the contested transaction in the ordinary course of business, with reference to the fact that the barter agreement does not correspond to the concept of a continuing obligation and cannot be attributed to the ordinary business of the debtor.

The Supreme Court referred the defendants' complaint to the board for consideration and noted the following arguments of the applicants:

One of the defendants pointed out that he had been an employee of the debtor since 12/19/2006, and the disputed barter agreement actually represented a financial incentive for the employee in accordance with paragraph 3.3 of the employment contract, in connection with which the formal approach to determining the terms of the equivalence of the transaction based only on the market value of the apartments is incorrect.

The defendants also claim that the disputed transaction was made within the framework of the debtor's ordinary business activities, since the debtor practiced financial incentives for employees in the form of gratuitous provision of housing for living, as well as the gratuitous transfer of housing to the ownership of employees in its economic activities.