08/07/2024 Tatyana Tsepkina spoke on the pages of the Advocate Newspaper in the article “The Supreme Court did not allow the unscrupulous head of the company to escape from subsidiary responsibility”, where she shared her opinion on the possibility of filing a corresponding claim outside the framework of the bankruptcy case of a legal entity.
The Supreme Court considered a case in which the creditor applied to the court for the inclusion of claims in the amount of more than 5.5 million rubles in the register of creditors of the debtor as a subsidiary defendant. The defendant in this case was the sole participant and CEO of the LLC, which was excluded from the Unified State Register of Legal Entities by decision of the tax authority as invalid. The applicant believed that the defendant had acted in bad faith during the liquidation of the company, and therefore had to answer for the debts of the company under his control, which he had brought to such a state. The arbitration courts of all three instances established signs of the defendant’s guilty behavior, but refused to bring him to justice. The courts indicated that the creditor had the opportunity to control the decisions taken by the tax service and challenge the record of the company’s exclusion from the Unified State Register of Legal Entities.
The Supreme Court disagreed with the position of the lower instances. Canceling judicial acts, the Judicial Board pointed out that the rule of law does not encourage “abandoned business”, and the creditor’s failure to take measures against the exclusion of a debtor legal entity from the register does not form grounds for releasing a person from liability or reducing its size. The creditor’s claims were included in the register of creditors’ claims in the bankruptcy case of the former head of the “abandoned” LLC.
Commenting on her speech in the main publication of the Russian law community, the head of the L&P practice “Insolvency and Bankruptcy” Tatyana Tsepkina notes: “Unscrupulous founders often use the administrative liquidation of a legal entity to avoid settlements with creditors, since a legal entity excluded from the register is not responsible for obligations. The case under consideration and the extensive subsidiary practice of L&P lawyers are proof of this. The position formed by the highest court can help creditors recover debts in the bankruptcy case of an unscrupulous founder and/or head.”
