The district court clarified the specifics of bringing the head of company to subsidiary liability

The Arbitration Court of the North-West District considered the case at the request of the bankruptcy manager of the debtor. The question concerned the attraction of the head of a bankrupt company to subsidiary liability due to incomplete transfer of documentation. At the same time, the head himself insisted that he had provided all the necessary documents and there were no grounds for bringing him to liability.

The court of first instance and the court of appeal agreed with this position.

They pointed out that the manager did not prove that the failure to transfer the requested documents significantly complicated the debtor's insolvency procedure.

Moreover, the court of appeal referred to the fact that at the time of the consideration of the application a decision had not yet been made in another case, within which the bankruptcy manager had requested the documents.

However, the district court did not agree with this opinion and outlined a number of important theses.

When considering cases of attracting head of company to subsidiary liability due to the lack of the required documentation, it is important to remember the burden of proof.

On the one hand, the applicant, in this case, the manager, is obliged to submit to the court the evidence that the failure to submit documents significantly hampered the bankruptcy proceedings.

On the other hand, the head of company is obliged to refute the presented arguments or prove that he was not guilty of not transferring or losing the documentation.

The courts, however, erroneously placed the need to prove both circumstances on the applicant.

As for the absence of the application of a judicial act on the demand for documentation at the time of consideration, this fact does not confirm that the claims of the manager were not justified in any way, concluded the district court and canceled the decisions made (decision in case A56-146786 / 2018 of March 9, 2021).