THE SUPREME COURT OF THE RUSSIAN FEDERATION WILL CONSIDER A DISPUTE ON THE RECOVERY OF LOSSES CAUSED DURING A CONTROLLED BANKRUPTCY

The essence of the dispute was that the debtor, being the only resource-supplying enterprise in its region, on the basis of the decision of the creditors' meeting, continued to carry out activities in the course of bankruptcy proceedings to process the customer's raw materials and produce pulp and paper products.

To carry out the activity, a contract was concluded, according to which one person purchased raw materials and provided them to the debtor, and he processed it and gave it to the same person, who then transferred it to another participant in the scheme, or else sold it, receiving revenue.

Conceptually, this scheme was quite cost-effective, but in this particular case it was organized in such a way that the debtor not only did not make a profit, but also suffered losses, since he received raw materials at a price below cost, and all profits were distributed among other participants in the scheme.

Seeing this abuse on the part of all members of the group, as well as the bankruptcy trustee of the debtor, the Federal Tax Service appealed to the court with an application for recovery of damages, following the consideration of which the court of first instance refused to satisfy the claims, and was supported by an appeal.

The cassation partially disagreed with the conclusions of the courts, sending the dispute regarding the claims for a new consideration.

As a justification for this approach, the courts pointed to the lack of proof of the composition of losses, as well as the impossibility of presenting a corresponding claim due to the absence of the status of beneficiaries of the debtor among the participants of the scheme.

Not agreeing with the judicial acts, the creditor filed a cassation complaint with the Supreme Court of the Russian Federation, which was submitted to the board for consideration (the court session is scheduled for November 7).

As the reasons for the transfer of the complaint , the Supreme Court indicated the following: "The supreme court took into account the arguments about the similarity of the status of defendants in a separate dispute with the formal status of the debtor's managers, due to the functional community, since creditors and the bankruptcy trustee make decisions that determine the activities of the corporation."

Despite the impossibility of recovery of losses according to the rules of the bankruptcy law, the satisfaction of the claimed claim is possible on the basis of the general norms of the Civil Code of the Russian Federation on damage and recovery of losses.

Thus, already in the transfer definition, the approach of the Supreme Court of the Russian Federation is visible, which makes it possible to equate with the heads of persons who formally do not manage the debtor's activities, but whose actions within the framework of controlled bankruptcy cause losses both to the debtor himself and his creditors.