THE DIFFERENCE BETWEEN THE SIGNS OF INSOLVENCY AND THE CASH GAP

THE DIFFERENCE BETWEEN THE SIGNS OF INSOLVENCY AND THE CASH GAP

THE DIFFERENCE BETWEEN THE SIGNS OF INSOLVENCY AND THE CASH GAP
The term "cash gap", unlike the term "insolvency", is not a legal concept. Moreover, the term "cash gap" is not in the list of basic concepts of Federal Law No. 127-FZ dated 26.10.2002 "On Insolvency (Bankruptcy)", and this term does not directly relate to bankruptcy.

Nevertheless, it can be said that initially the economic term was included in the legal reality, since the occurrence of cash gaps is associated with the onset of certain legal consequences. Read more in the article Nadezhda Pronina, managing partner of the consulting company "YUKEY", head of "YUKEY-Legal Consulting".

The cash gap is a temporary shortage of money for expenses. This is the key terminological feature of the concept of "cash gap" its temporary nature. At the same time, the presence of cash gaps in itself does not indicate a loss-making business and does not entail. This may be due to the specifics of the industry or market conditions, for example, cash gaps are typical for seasonal types of business.

Based on the available judicial practice, it can be concluded that the cash gap is used as a concept describing the actual state of the business in a specific time period.

As for insolvency, this is strictly a legal concept. According to Federal Law No. 127, insolvency is the debtor's inability to fully satisfy creditors' claims for monetary obligations, fulfill the obligation to pay mandatory payments or pay for the work of persons working or who worked under an employment contract recognized by an arbitration court or as a result of the completion of the procedure of extrajudicial bankruptcy of a citizen.

The key criterion for determining insolvency is insolvency. Unlike the cash gap, this is not a temporary, but a permanent difference between income and expenses, forming fullfledged losses. The court in each specific case (not without the help of experts) can assess not a specific point in the time period, but the financial condition of the company during a certain period of its operation.

This is the way the legislator went in the bankruptcy of citizens and directly provided for the possibility to take into account the prospects of the debtor's financial situation in paragraph 7, paragraph 3 of Article 213.6 of the Federal Law "On Insolvency (Bankruptcy)":

"If there are sufficient grounds to believe that, taking into account the planned receipts of funds, including income from the activities of a citizen and repayment of debts to him, a citizen for a short time will be able to fulfill in full monetary obligations and (or) the obligation to pay mandatory payments, the deadline for which has come, a citizen cannot be recognized insolvent."

There is no direct rule for legal entities, but similar ideas are developing in practice. They are fixed in paragraph 4, paragraph 11 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 22.06.2012 No. 35 (ed. dated 21.12.2017) "On certain procedural issues related to the consideration of bankruptcy cases".

Formally, "cash gap" and "insolvency" are different disparate concepts. However, the cash gap can cause economic problems for businesses. In turn, economic problems can lead to insolvency. And insolvency is a key criterion for determining insolvency.

It turns out that the state of the cash gap itself does not indicate insolvency and is not a sign of it. But the cash gap can be a trigger for other problems for business.

 

Thus, cash gap and insolvency are not correlated concepts, cash gap does not create legal consequences in the field of bankruptcy legal relations.

 

Photo from the personal archive of Nadezhda Pronina


26.05.2023