In Russia, Children Were Forced To Pay The Debts Of A Bankrupt Company. How Will This Case Turn Out For Business?

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In Russia, Children Were Forced To Pay The Debts Of A Bankrupt Company. How Will This Case Turn Out For Business?
In Russia, Children Were Forced To Pay The Debts Of A Bankrupt Company. How Will This Case Turn Out For Business?

Video: In Russia, Children Were Forced To Pay The Debts Of A Bankrupt Company. How Will This Case Turn Out For Business?

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For the first time in Russian judicial practice, an arbitration court brought the children of its beneficiary to responsibility for the debts of a bankrupt company. Lawyers say that the authorities are tightening their approach to such cases, and this case creates a dangerous precedent for business. What happened The Alliance construction company owed 310 million rubles to the Federal Tax Service (FTS) and went bankrupt in 2017. As established by the courts, the company was hiding from paying taxes. To do this, its owner Vadim Samylovskikh conducted fictitious transactions with intermediary companies. As a result, the money withdrawn from the Alliance was deposited on the accounts of the Veksha Plus company, owned by Vadim's wife Natalya Kiriyenko. In 2018, the Federal Tax Service demanded that the controlling persons of the Alliance - the Samylovskys, Kirienko, as well as their two sons - be brought to subsidiary liability. The fiscals explained this by the fact that after the bankruptcy of Alliance, the parents gave the brothers, who at that time were 20 and 15 years old, respectively, eight real estate objects and two cars. In the beginning, the court brought only the Samylovskys to subsidiary liability. The appeal acknowledged that the wife also participated in the asset stripping and should receive the same punishment. When it came to the Supreme Court (SC), the panel of judges asked the question: were the children used to hide property from creditors? The Supreme Court instructed the courts to establish whether the Samylovskys Jr. became the real owners of the property or whether the transactions were fictitious. As a result, at the end of October 2020, the arbitration court brought the Samylovsky children to subsidiary liability. Now their property will be seized. What lawyers think about it This decision was made in Russia for the first time, several lawyers confirmed to Sekret Firmy at once. This indicates a toughening of the approach to cases of bringing to subsidiary liability, the interlocutors say. “The Supreme Court in 2012 directly indicated that a person cannot be recognized as a controlling person (and, accordingly, brought him to subsidiary liability. - Note.“Secret”) only on the basis of kinship with the debtor,” recalled the lawyer of the “European Legal Service” Evgeny Ivanov … - But in 2019, the Collegium for Economic Disputes of the Armed Forces of the Russian Federation allowed to bring the heirs of the deceased debtor to subsidiary liability. But only if he agrees to accept the inheritance. " In his opinion, the case of the Samylovsky brothers will change the approaches of the courts to the grounds and procedure for bringing the debtor's minor children to subsidiary liability in bankruptcy cases. And this creates a dangerous precedent for business, believes Denis Frolov, a lawyer and partner of BMS Law Firm. “It is likely that children will be brought to subsidiary liability in the same way in an amount greater than the assets donated to them,” he explained. Daria Stepanova, senior lawyer at Paragraph Attorneys at law, drew attention to the fact that the children received from their parents not the property of the debtor company, but legally purchased. “The novelty of the position of the Armed Forces was an indication that it does not matter what kind of property of the controlling persons is hidden from creditors - acquired through illegally obtained income or legally,” she stressed. According to the logic of the Armed Forces, if the director of a bankrupt company gives a relative any of his property in order to hide it from creditors, and this relative knows (or "cannot but know") about this "harmful goal", then this person should be recognized as a "cause of harm" … “In this story, the conclusions of the court regarding the wife of the general director seem to be quite reasonable.But with regard to children (at least in relation to a minor child, who at the time of donation was 15 years old), they raise a large number of questions, - says Anna Madjar, head of the bankruptcy practice of the law firm "Pleshakov, Ushkalov and partners". “In particular, how can a minor child be aware of the harmful nature of the actions of the parents?” It is too early to say that Russia will begin to massively attract family members of the founder of the business to subsidiary liability, Majar said. Indeed, for this, creditors will need to provide evidence of asset stripping. But if they succeed in proving this, or if the court finds that close relatives gave instructions to the business and these actions could lead to the bankruptcy of the company, then the chances of bringing family members to justice are high, adds Vitaly Bogomolov, a lawyer for MKA Klishin and Partners. The Firm's Secret has a Telegram channel. Subscribe! Photo: depositphotos.com

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