RusBankrot
We know everything about bankruptcy
28/04/2024
Sunday
THIS DAY IN HISTORY:
28 April 
1970 World Labor Safety Day
1970 World Labor Safety Day
1970 The Italian dictator Benito Mussollini and his lover, Clara Petacci, were executed
1970 The Italian dictator Benito Mussollini and his lover, Clara Petacci, were executed
1970 The capture of Milan by the troops of Suvorov
1970 The capture of Milan by the troops of Suvorov
28 April
1970 World Labor Safety Day
1970 World Labor Safety Day
1970 The Italian dictator Benito Mussollini and his lover, Clara Petacci, were executed
1970 The Italian dictator Benito Mussollini and his lover, Clara Petacci, were executed
1970 The capture of Milan by the troops of Suvorov
1970 The capture of Milan by the troops of Suvorov
TAX PENALTIES ARE NOT INCLUDED IN THE SUBSIDY
The bankruptcy trustee in court demanded that KDL be held vicariously liable for the obligations of the debtor.
The position of the first instance and the appeal
The application of the manager was satisfied by two instances.
The courts noted that the bankruptcy trustee of the debtor pointed to the non-transfer of documentation related to the financial and economic activities of the debtor, which led to the inability to determine the assets of the debtor.
The arguments that the debtor acted under conditions of ordinary economic risk, and bankruptcy was the result of a number of negative factors that objectively affected the company's ability to carry out its activities, and not as a result of the guilty actions of the persons involved, were recognized by the courts as unconfirmed, insufficient and unacceptable evidence.
The courts found that as a result of deliberate actions, including by the founder and the commercial director of the debtor, there was an increase in accounts payable to the authorized body.
The position of the District Court
The District Court changed the judicial acts of lower instances, reducing the amount of subsidiary liability (Resolution of the AC MO of 12.01.24 in case No. A40-154442/2021). In forming its position, the court stated the following:
• Responsibility is of a delicate nature, accordingly, it is required to establish all the circumstances of a civil offense. At the same time, the subjective discretion of state bodies (whether prosecutor's offices or tax authorities) in choosing a specific mechanism for protecting the interests of the budget should not lead to such significant consequences for the property status of an individual guilty of the inability to fully repay the creditors of a taxpayer organization.
• It is necessary to exclude the amount of fines for tax offenses from the composition of subsidiary liability, based on the principles of fairness and proportionality.
The position of the first instance and the appeal
The application of the manager was satisfied by two instances.The courts noted that the bankruptcy trustee of the debtor pointed to the non-transfer of documentation related to the financial and economic activities of the debtor, which led to the inability to determine the assets of the debtor.
The arguments that the debtor acted under conditions of ordinary economic risk, and bankruptcy was the result of a number of negative factors that objectively affected the company's ability to carry out its activities, and not as a result of the guilty actions of the persons involved, were recognized by the courts as unconfirmed, insufficient and unacceptable evidence.
The courts found that as a result of deliberate actions, including by the founder and the commercial director of the debtor, there was an increase in accounts payable to the authorized body.
The position of the District Court
The District Court changed the judicial acts of lower instances, reducing the amount of subsidiary liability (Resolution of the AC MO of 12.01.24 in case No. A40-154442/2021). In forming its position, the court stated the following:• Responsibility is of a delicate nature, accordingly, it is required to establish all the circumstances of a civil offense. At the same time, the subjective discretion of state bodies (whether prosecutor's offices or tax authorities) in choosing a specific mechanism for protecting the interests of the budget should not lead to such significant consequences for the property status of an individual guilty of the inability to fully repay the creditors of a taxpayer organization.
• It is necessary to exclude the amount of fines for tax offenses from the composition of subsidiary liability, based on the principles of fairness and proportionality.
15.01.2024
