The Supreme Court has stated this decision in its position (Definition of the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation of 26.04.2024 N 305-ES23-29091 in case N A40-165246/2022).

Situation: In the course of bankruptcy proceedings against a bank, the persons who controlled the bank – several individuals and one company – were brought to subsidiary liability. At the time of bankruptcy proceedings, the controlling person-organization was administratively excluded from the Unified State Register of Legal Entities due to unreliable information about it. At the same time, the company’s liability is confirmed by a court judgment, for which the writ of execution was obtained. The bankruptcy trustee in bankruptcy filed a lawsuit to bring to subsidiary liability for the organization excluded from the Unified State Register of Legal Entities – its owner, an individual.

The courts of three instances dismissed the suit for the following reasons:

  • the bankruptcy trustee could have filed an application to the tax authorities to challenge the exclusion of the organization from the register, but did not do so;
  • the owner of the organization is not guilty for the exclusion from the Unified State Register of Legal Entities of a de facto inactive organization, the liquidation was carried out administratively by decision of the tax authorities;
  • exclusion of the company from the Unified State Register of Legal Entities due to inaction of the owner is not a sufficient basis for bringing to subsidiary liability;
  • the existence of a debt confirmed by a judicial act that has entered into legal force is not indisputable proof of the owner’s guilt in failing to pay this debt.

What position the Supreme Court has taken:

  • the owner of a debtor organization may be held liable to creditors if the debt was triggered by actions and decisions of the owner whose conduct did not meet the criteria of good faith and reasonableness;
  • exclusion of an organization from the Unified State Register of Legal Entities occurs also due to actions or omissions of the owner of the organization (for a long period of time the company did not submit tax and levy reporting documents and did not perform operations on at least one bank account, etc.);
  • the owner of the debtor company should act in the interests of his organization, at the same time the founder did not take measures to repay the debt owed and contributed to the exclusion of his organization from the Unified State Register of Legal Entities as inactive;
  • the actions of the owner of the debtor company are recognized as bad faith and culpable, the owner bears subsidiary responsibility for the actions of the legal entity even after the exclusion of the organization from the register of legal entities.