Judicial act: Resolution of the Arbitration Court of the Altai Territory dated June 10, 2020 in case No. А03-7615/2020
Court's findings:
1. The debtor and the person concerned (the debtor's son) acknowledged the claims, respectively, the formal execution of the transaction takes place, given that the debtor has not lost control over the activities of the LLC. Consequently, the share belonging to the debtor did not actually leave his property.
2. The subsequent transfer of a share under a gratuitous agreement in favor of a non-interested person in the presence of a debt to the creditor whose claims are included in the register of claims is aimed at withdrawing property and, as a result, causing damage to the property rights of creditors.
3. Transactions aimed at concealing the debtor's property are void on the basis of Articles 10, 168, paragraph 1 of Article 170 of the Civil Code of the Russian Federation. There are no grounds for applying the rules of bilateral restitution, since the fact of payment has not been established for any transaction. The donation agreement is gratuitous, however, as a result of the transaction, the property position of the debtor was intentionally worsened and the volume of his assets was reduced.
4. The exclusion of an LLC from the Unified State Register of Legal Entities in an administrative manner does not mean that the organization has been liquidated - interested parties have the right to challenge the actions of the authorized body. The judicial act adopted in the case is the appropriate basis for amending the Unified State Register of Legal Entities.
Comments:
1. Considering the issue of a deal concluded after a period of suspicion, and establishing the fact of vicious will. The court of appeal took into account the gratuitous nature of the donation agreement concluded in November 2011 and, as a result, the need to establish the depravity of the will only on the part of the donor. At the same time, the debtor confirmed that he had not actually lost control over the activities of the LLC, which was not disputed by the parties to the dispute. Therefore, the court came to the conclusion that the transaction was formally executed, since the share in the LLC did not leave the debtor's possession.
2. Establishing the presence of intent to harm the property interests of creditors, as well as to withdraw property - in relation to the subsequent donation of a share in an LLC. The court proceeded from the existence of a debt confirmed by a court decision (April 2018) to the creditor as of the date of conclusion of the donation agreement (August 2018). In addition, the debtor referred to the fact of the conclusion of an assignment agreement in respect of the collected debt between the creditor and the donee, while the procedural succession was denied and it was the fact of the existence of the specified assignment agreement that allowed the debtor to refer to the absence of claims and, as a consequence, the need to exclude this creditor from the register of debtor's claims . Taken together, these circumstances allowed the court to conclude that the transfer of a share drawn up by a donation agreement is free of charge, since it does not confirm the circumstances of the repayment of the debt to the debtor's creditor, confirmed by a court decision.
3. The original donation agreement was concluded in November 2011, respectively, outside the limitation period. The debtor's creditor stated that this period was missed, however, the court rejected this argument with reference to Part 2 of Article 199 of the Civil Code of the Russian Federation, considering the creditor to be an improper person who is not a party to the transaction and, accordingly, not entitled to declare that the limitation period has been missed. Separately, the court noted the inconsistency of the actions of the creditor, as it initially supported the position of the financial manager, and later began to take a different position.
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