THE COP WILL CONSIDER THE ISSUE OF THE ORDER OF REPAYMENT OF TAX PENALTIES IN THE IMPLEMENTATION OF THE PLEDGE

The Constitutional Court of the Russian Federation has accepted for consideration the complaint of LLC TD Agrotorg on the recognition of clause 6 of Article 138 of the Bankruptcy Law as inconsistent with the Constitution of the Russian Federation. In 2021, the Supreme Court based its position on this provision of the GOITRE, according to which taxes accrued on such property during production are primarily repaid at the expense of proceeds from the sale of collateral.

In its complaint, the organization noted that after the formation of such a position of the Supreme Court, in practice there were two conflicting judicial approaches to the issue of accrual of penalties on the above-mentioned tax arrears. On the one hand, there is a practice when taxes are not repayable primarily at the expense of funds from the sale of collateral. However, there is also an absolutely opposite judicial position, according to which penalties and taxes are repayable before settlement with a secured creditor.

In the bankruptcy case of LLC "Verkhnevolzhsky Brick Factory", the last position appeared as a collateral creditor for which TD "Agrotorg" acted.

Two land plots with infrastructure that were pledged by Agrotorg were sold in May 2021 for 414 million rubles. The organization hoped to repay its claims with the sale of collateral for 342 million. But the Federal Tax Service has put forward its demands for the repayment of taxes and penalties for 234 million rubles.

Three instances satisfied the requirements of the authorized body, explaining that due to the special legal nature of penalties, they have priority in repayment on a par with taxes.

The reasons for the transfer of the cassation appeal to the Supreme Court were not established. Then Agrotorg decided to appeal to the Constitutional Court, believing that paragraph 3 of Article 137 of the GOITRE already regulates the repayment of taxes and penalties. It says that they are repaid after the satisfaction of the collateral creditor's claims on the principal debt and interest on it. The Organization considers this approach applicable to the present issue. As noted by Agrotorg, the priority repayment of financial sanctions at the expense of funds received from the sale of collateral violates the balance of interests of the collateral creditor and the authorized body.

In this regard, Agrotorg asks to recognize paragraph 6 of Article 138 of the insolvency Law as inconsistent with the Constitution of the Russian Federation, since in the current law enforcement practice it allows to repay penalties as a priority along with current tax arrears.

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