THE SUPREME COURT WILL SORT OUT THE CHALLENGE OF TRANSACTIONS ON THE "DILUTION" OF SHARES

The debtor's creditor (case no. A40-45727/20) applied to the court to challenge the transaction on the admission of a new participant to the debtor's subsidiary. The debtor owned a license to carry out subsurface use activities, the rightholder of which was a subsidiary company established by the debtor.

Subsequently, the debtor initiated its own liquidation procedure and accepted a new participant into the subsidiary, which increased the authorized capital of the company, as a result of which the debtor became a minority participant.

Believing that the specified transaction caused harm to creditors (since the new participant was an affiliated person with respect to the debtor and his admission to the membership of the subsidiary was carried out in order to preserve his profits from subsurface use and reduce the debtor's property sphere), the creditor asked to invalidate the transaction.

The court of first instance granted the application, the higher courts canceled the ruling, refusing to satisfy the claim.

The Supreme Court of the Russian Federation, referring the case to the board, noted that the value of participation in capital can be expressed not only in purely property opportunities, but also in the realization of corporate rights, which the debtor refused in the absence of economic expediency.

In order to conceal property from creditors, the debtor and its affiliated persons implemented a model in which there was a redistribution of ownership shares in an externally unprofitable company, the liquid property of which is at least the cost of the license. The economic sense was that it determines the value of the alienated majority share and the amount of profit received by the subsidiary from its use is included in the value of the enterprise as a property complex that can be realized during the bankruptcy procedure.

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