On the right of an insolvency practitioner to receive incentive compensation

The bankruptcy trustee in insolvency applied to court demanding to award him incentive remuneration in the amount of 49 million rubles.

Two courts allowed the claim in part of 500 thousand rubles, cassation sent it for reconsideration. At the new hearing the claim was denied because the courts ruled that there was no connection between the manager’s actions and the only bankruptcy creditor Shlyakhov V.A. who had been the subject of a dispute over whether he should be held liable as a KDL.

Position of the cassation:

– The mere fact that there are joint efforts of the manager and the bankruptcy creditor to bring the KDL to subsidiary liability does not deprive the manager of the right to payment of incentive remuneration. However, in this case, the amount of remuneration is determined by a combination of factors (the amount of work performed directly by the manager, the complexity and duration of the case, etc.);

– the courts did not investigate the relationship between the will of V.A. Shlyakhovoy to repay the claims of the sole creditor and the existence of a dispute on bringing V.A. Shlyakhovoy to subsidiary liability. Materials of the case testify that despite the position of Shlyakhov V.A. that the purpose of repayment of creditor’s claims was purely avoidance of criminal prosecution, this intention arose in Shlyakhov V.A. under the influence of actions of the manager and the bankruptcy creditor (filing applications for bringing Shlyakhovoy V.A. to responsibility as a KDL, which due to the procedural position of Shlyakhovoy V.A. himself and successful contestation by the bankruptcy manager of the transaction, which he was charged with committing, could be successful);

– In determining the real contribution of the Managing Director to the final result in terms of value, taking into account the joint action of the Managing Director and the bankruptcy creditor, the district court considers it reasonable to apply the rules of paragraph 2 of Clause 13 of Article 20.6 of the Bankruptcy Law in determining the value of such contributions.

Judicial acts were abolished, the requirements – were satisfied to the extent of 11 455 591 rubles.

Decision of the Court of Arbitration of the Russian Federation of 05.05.22 in case № A73-10780/2019.