THE COURT MUST ESTABLISH THE AMOUNT OF DAMAGES FROM THE MANAGER FOR FAILURE TO GRANT A SUBSIDY

In the framework of the bankruptcy case (no. A12-70406/16), the creditor (Federal Tax Service) filed an application for recovery of losses from the manager, in support of the claim pointing to the fact of late submission by the manager of an application for bringing controlling persons to subsidiary liability, which led to the omission of the statute of limitations.

The courts of two instances satisfied the requirement of the Federal Tax Service in full, considering the composition of the losses proved.

The cassation sent the dispute for a new consideration and noted the following:

The lower instances did not take into account the property status of subsidiary defendants, whose claims were rejected on the grounds of missing the statute of limitations.

Having limited themselves to indicating the existence of property in the property of the defendants, the courts did not establish its actual presence in these persons, the possibility of foreclosure on this property, did not determine the liquidity and possible value of the property, taking into account its condition.

In this case, in fact, having presumed the impossibility of replenishing the debtor's bankruptcy estate for the amount of possible subsidiary liability of the persons controlling the debtor, and also pointing to the failure of the manager to provide evidence of the impossibility of collecting funds from individuals in the appropriate amount, the courts incorrectly distributed the burden of proof, freeing the authorized body from proving the amount of damages to be reimbursed.