Roman Prokofev | comments for the «Advokatskaya Gazeta»: The CC assessed the burden of proof in disputes for imposition of subsidiary liability beyond the framework of a bankruptcy case

The court stated that if creditors, with the help of indirect evidence, manage to justify statements on the person being brought to liability having the status of a controlling person and on impossibility of repayment of creditors’ claims for the reason of such person’s actions or omissions, the burden of rebutting such statements shall transfer to the person controlling the debtor.

Roman Prokofev, Attorney of ART DE LEX Restructuring and Bankruptcy Practice, emphasized that the CC in its ruling continues to consistently resolve the problem of necessity of fair distribution of the burden of proof in disputes for imposition of subsidiary liability in situations, when the debtor company is excluded from the EGRUL. The expert noted that the relevance of such problems for the business can be easily explained by statistics: as of 2021, the number of companies that terminated operation in connection with exclusion from the EGRUL exceeded 4.7 million.

Roman Prokofev supported the opinion that in case of termination of a debtor’s bankruptcy procedure for the reason of insufficient funds for its financing, and also in case of subsequent exclusion of such company from EGRUL, its creditors face objective difficulties in forming evidence substantiating the necessity of imposing subsidiary liability on the person controlling the debtor. This circumstance explains the need for imposition on the person controlling the debtor of the burden of proof of absence of fault in the debtor’s bankruptcy, believes the expert.

He emphasized the following: it should be understood that the issue of redistribution of the burden of proof not in favour of controlling persons does not predetermine holding them liable. In the opinion of Roman Prokofiev, in each particular case the court has to both assess the creditor’s ability to independently get access to the relevant information (resolving the issue of apportionment of burdens) and take into account the defendants’ ability to substantiate absence of their fault in the debtor’s bankruptcy.

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