SUPREME COURT INTERESTED IN FAKE LOAN IN BANKRUPTCY CASE

On May 25, 2023, the Economic Board of the Supreme Court of the Russian Federation will consider the complaint of the bankruptcy trustee in the bankruptcy case of the management company "Dom-Master" (No. A40-274335/2019). It refers to a loan agreement that was concluded by the head of the organization, Vladimir Fokin, in order to close the criminal case brought against him.

As reported in the case file, the reason for the loan was the decision of the tax authorities issued in February 2016. The Federal Tax Service included more than 462.8 million rubles in the expenses of the CU, additionally adding payments in the amount of more than 191.8 million rubles. In December of the same year, the capital arbitration upheld the decision of the tax authorities.

It turned out that Fokin, who was in charge of the company, had been withdrawing the financial assets of the organization through affiliated one-day firms for several years (2011-2013). Some of the funds were transferred to offshore accounts, the other part was simply cashed out. As a result, in April 2017, Fokin turned out to be a suspect in a criminal case related to tax fraud.

In order for the criminal case brought against him to be closed, the head transferred 114.497 million to the company's account, at the expense of which debts to the tax authorities could be repaid. At the same time, Fokin executed the transaction as a target loan agreement with the condition of accrual of annual payments of 10% of the amount. By July 2017, taxes were paid, and the criminal prosecution of the head of the Criminal Code was discontinued.

In November 2019, an energy company serving the housing stock of the capital filed a bankruptcy lawsuit against the Criminal Code. MOEK demanded that the organization be declared insolvent, which was done in August 2020. After that, the bankruptcy trustee petitioned the court, asking to recognize the deal "DomMaster" with the ex-head invalid. According to the applicant, there were facts of the withdrawal of the company's assets in favor of the interested party to the detriment of the creditors' interests.

However, the loan case went through all three courts in May, September and December 2022. Everywhere the petition was refused. The judges each time proceeded from the fact that the loan was targeted, the organization and its head were not affiliated.

Compensatory financing, which could be considered the fact of the transfer of funds, is not yet proof of the invalidity of the transaction itself. Moreover, the organization did not have any signs of insolvency at that time.

To the judge of the Supreme Court, Samuilov, the case seemed worthy of attention. The plaintiff pointed out that the courts did not take into account the signs of the pretence of the loan agreement, which should have been considered. As experts point out, the application of Article 170 of the Civil Code of the Russian Federation in bankruptcy procedures is becoming an increasingly popular practice related to the recognition of contracts as null and void.

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