The Supreme Court sent for review the case of bringing several persons controlling the debtor to subsidiary liability in a joint and several manner, disagreeing with the conclusions of the Federal Tax Service of Russia based on the results of the tax audit.
The tax authority appealed to the court with a demand to bring to subsidiary liability three former managers of a bankrupt company on the basis of allegedly causing damage to the company by committing a tax offense.
The courts of the first, appellate and cassation instances supported the tax authority's arguments.
The Supreme Court’s Economic Chamber “looked deeper” into the dispute and pointed out a number of circumstances that were not taken into account by the courts when considering the case, in particular:
- on the rebuttability of the presumption of proof of bringing the debtor to bankruptcy by the actions of controlling persons, specified in paragraph 4 of Article 10 of the Bankruptcy Law;
- the absence in the case of evidence of joint intent and coordination of illegal actions of all three managers of the debtor held accountable.
Further, when considering a separate dispute, the court of first instance refused to satisfy the demands of the tax authority to bring to subsidiary liability two of the three former managers of the bankrupt enterprise (Moscow City Arbitration Court’s Ruling dated December 11, 2023 in case A40-133029/2020).
Let us recall that the fundamental importance of correctly qualifying the actions of several persons controlling the debtor from the point of view of their coordination and focus on the implementation of a single intention was also drawn to the attention of the Supreme Court’s Plenum in paragraph 22 of Resolution No. 53 of December 21, 2017 “ On certain issues relating to imposing liability on persons controlling the debtor in a bankruptcy case”.