The SCARF is to decide who is responsible for the manager

Soon the supervisory instance of the Supreme Court of Arbitration of the Russian Federation will have to kill two birds with a single stone. This February the Court will deal with the dispute between tax officials and MIC OJSC, which has insured the responsibility of a trustee in bankruptcy. Possibly, the Presidium will decide on a problem of acknowledging the responsibility of trustees for losses they cause to the participants of the bankruptcy proceedings. The judges will, probably, simultaneously create an efficient mechanism of compensation for such losses.

A dispute between the Federal Tax Service of Russia, represented by the Zabaikalsky Territory Department of the FTS of Russia, and “Military Insurance Company” OJSC (case № A78-4813/2010). The Claimant (the tax service) demands that the Respondent (the insurance company) compensate to him the losses incurred as a result of violations by trustee Dmitry Alekseev of the order, according to which the creditors’ (the FTS included) claims were to be settled. According to the decisions of courts of arbitration, the tax authority was to receive over 2 million rubles from the bankruptcy estate managed by the trustee, but the trustee avoided payment.

Artem Kukin, Advocate, Partner at the Firm, told Pravo.Ru: “Taking into account that, on the stage of bankruptcy proceedings, a creditor has very few possibilities to actually influence the actions of the trustee in bankruptcy, the creditors should be given an understandable and functioning mechanism of compensation of losses caused by the trustee’s actions. The lawmakers have provided for such an opportunity by obliging the trustees to insure their liability to third parties”.

Property liability of the trustee D.Alekseev to beneficiaries in the case of incorrect performance by him, as required by law, was insured by “Military Insurance Company (MIC)” OJSC – 3 million roubles for each contract. The tax officials had to claim the insurance payments from the MIC, but were denied such payments, and resorted to arbitration.

The FTS’s claim was upheld by the first instance court (Court of Arbitration of the Zabaikalsky Territory). The court based its conclusion on the fact that the insurer of the trustee was obliged to pay the insurance amount to the Claimant, who had incurred losses caused by the trustee’s actions. But the 4^th Arbitration Court of Appeal and the Federal Court of Arbitration of the East-Siberian District revoked the decision and fully dismissed the Claimant’s claim. The courts alleged that clause 4 of Article 931 of the CCRF was incorrectly construed, according to which the claim to compensate losses was to be made by the insured person (the trustee) himself. In other words, the second and appeal instances reasoned that the FTS had to file the claim not against the MIC directly, but against the trustee, who later would be able, by separate proceedings, to recover the compensated losses from his insurer.

As the trustees themselves are often unable to compensate for the losses caused by their activity, many experts believe that insurance is the only real possibility for the creditors not to remain empty-handed. That is why different courts have different opinions on the matter, and the allocation of such losses is seen as a grave problem requiring a formed common approach.

In this sense, the resolution to transmit the case to the supervisory instance is a premise to that. Liudmila Novoselova, Nina Ivannikova and Ivan Razumov, Judges of the Supreme Court of Arbitration, pointed to the provisions of clause 4 of Article 931 of the CCRF, which directly endow the beneficiary with the right to claim compensation for the losses from the insurer. If the claimant has already addressed the trustee but did not actually receive any money from him, this fact does not automatically prevent him from addressing the insurance company, the three Judges believe. If the amount of losses exceeds the insurance limit, clause 3 of Article 25.1 of the Bankruptcy Law stipulates the mechanism, according to which the autonomous organization of the trustee at fault is liable for the rest of the amount.

The panel recommended reviewing the earlier adopted court acts on the case. Advocate Artem Kukin believes: “If the Presidium of the SCARF upholds such position, an extremely significant contribution to the creation of an efficient mechanism of protection of the creditors’ rights in bankruptcy cases will be made”. Anyway, whatever the outcome of the case will be, it will be known on February 21.

For more details see here.