THE COURT REJECTED THE TRUSTEE’S CLAIM TO TRANSFER BANKRUPTCY PROCEDURE FROM SIMPLIFIED TO A GENERAL ONE

The Arbitration Court of the North Caucasian District considered the case on the complaint of the tax authority. The inspectorate, being a creditor in the framework of the insolvency case, challenged the decisions of the lower courts, which transferred the bankruptcy procedure from a simplified procedure to a general one at the request of the bankruptcy trustee.

The fact was that the case was initiated by the tax authority, which applied to court to declare the company insolvent as part of the bankruptcy procedure for the absent debtor. Then, after satisfying the claim, the bankruptcy trustee approved by the court filed an application for the transition from the simplified insolvency procedure to the general one.

The reason was the presence of the debtor's property, with which the bankruptcy estate could be replenished.

The receivables of the company, as well as signs of deliberate bankruptcy, were declared as the alleged property, which indicated the possibility of bringing the controlling persons of the debtor to subsidiary liability. These two circumstances were sufficient for the lower instances to satisfy the trustee’s claim, but not for the district court.

The board pointed out that it was the bankruptcy trustee who had to prove not only the presence of the debtor's property (in this case, receivables), but also the real amount to be collected and the costs that would be incurred in this connection. The same argument applies to bringing the persons controlling the debtor to subsidiary liability, as the information about the presence of property was not provided.

As a result, the district court refused to satisfy the claims, and the bankruptcy procedure returned to a simplified procedure (decision in case No. A20-3534 / 2019 of May 6, 2021).