A law firm declaring a legal entity bankrupt because it does not pay taxes and other mandatory payments to the budget
The Court of cassation did not take into account that, when considering the case, the courts of the first and appellate instances did not enforce the provisions of part 1 of Article 364 of the CPC in terms of correctly determining and clarifying the circumstances relevant to the case, the conformity of the court's conclusions with the circumstances of the case. GU "N" filed a claim for declaring LLP "K" bankrupt. The claim is based on the fact that since 2008, K LLP has not paid taxes and other mandatory payments to the budget. As of April 26, 2012, there are arrears on taxes and other mandatory payments to the budget in the amount of 10,270,693 tenge, on mandatory pension contributions - 7,634,846 tenge and on social contributions - 2,894,652 tenge. The debtor has not carried out any sowing and harvesting work on his own for two years. The claim was dismissed by the decision of the specialized interdistrict Economic Court of Akmola region dated June 27, 2012. By the decision of the Appellate Judicial Board for Civil and administrative cases of the Akmola Regional Court dated October 11, 2012, the decision of the court of first instance dated June 27, 2012 was left unchanged, by the decision of the Cassation Judicial Board of the Akmola Regional Court dated November 15, 2012, the decision of the court of appeal dated October 11, 2012 was left unchanged. The Supervisory Judicial Board of the Supreme Court overturned the decision of the specialized interdistrict economic court of the Akmola region, the decisions of the appellate and cassation judicial boards of the regional court. The case was sent for new consideration to the specialized interdistrict economic court of the Akmola region. The petition of GU "N" was partially satisfied on the following grounds.
A law firm declaring a legal entity bankrupt because it does not pay taxes and other mandatory payments to the budget
It can be seen from the case materials that K LLP is an agricultural organization that has the right to temporary paid land use for a period of 49 years of agricultural land: in Ortak rural district with an area of 8,666 hectares (cadastral number 01-160-058-0014); in Kazotyn rural district with an area of 3,078.4 hectares (cadastral number 01-160-060-0014); in Kusel rural district with an area of 7,941.3 hectares (cadastral number 01-160-055-0014); in Kusepsky rural district with an area of 4,616.7 hectares (cadastral number 01-160-055-0023). Based on the agreement dated March 15, 2005, LLP "K" secured the right of land use for land plots with an area of 8,666 hectares, 3,078.4 hectares and 7,941.3 hectares to ensure the fulfillment of the obligations of LLP "N" and LLP "D" under loan agreements concluded with JSC "N". There is no reliable evidence in the case file about the presence in K LLP of agricultural machinery and equipment necessary for the implementation of the agricultural production cycle (plowing, sowing grain seeds, processing and harvesting) and the reflection of this property in the balance sheet. About 600 people are members of the partnership, but 80% of the share in its authorized capital belongs to T. On April 01, 2009, the directors of LLP "I" G. and LLP "K" T. signed a joint operation agreement until December 31, 2014. Under the terms of the agreement, LLP "I" carries out a cycle of agricultural work on land plots with a total area of 1,877 hectares, receiving 100% of the grain of ground wheat, and LLP "K" receives the preservation and increase of fertility of these land plots. On May 08, 2012, between the directors of LLP "I" G. and LLP "K" T. A joint operation agreement has been concluded until December 31, 2015.
Under the terms of the agreement, LLP "I" carries out a cycle of agricultural work on land plots with a total area of 10,908 ha, receiving 95% of the harvest of cereals and oilseeds harvested from these land plots, and LLP "K" receives the preservation and increase of fertility of these land plots and 5% of the harvested grain in physical weight. According to the terms of these agreements, all agricultural work on these lands is carried out by I LLP. There is no reliable information in the case file that, with the exception of the amount of agricultural land specified in the contracts, other lands are used in agricultural production. It can be seen from the case file that "K" LLP has not paid taxes and other mandatory payments to the budget since the 3rd quarter of 2008. The above-mentioned circumstances of legal significance have not been fully, comprehensively and objectively investigated by local courts when considering the case, and these circumstances have not been given a proper legal assessment. When considering the case, the court of first instance was guided by the provisions of sub–paragraphs 1) and 2) of paragraph 1 of Article 36 of the Law "On Bankruptcy", (hereinafter referred to as the Law) indicating that the debtor does not recognize his insolvency, without denying the debt on tax obligations, pension and social contributions, wages.
A law firm declaring a legal entity bankrupt because it does not pay taxes and other mandatory payments to the budget
The court referred to the joint operation agreement dated May 08, 2012, indicating that the calculation of the expected profit from the sale of 5% of the gross grain harvest would amount to more than 20 million tenge and would pay off debts. The court also referred to the letter of guarantee from I LLP dated June 27 that the tax debt in the amount of KZT 6,000,000 would be repaid by July 10, 2012, and the remainder of this debt would be repaid by the end of 2012. The court referred to the act on the availability of 16 items of property worth more than 21,000,000 tenge, which is sufficient to repay debts. However, the court did not require accounting statements from the debtor, from which it could be concluded that this property was reflected in the balance sheet of the legal entity. The court referred to the fact that the debtor has 34 141 hectares of agricultural land on the right of temporary paid land use. However, he did not establish the value of this right, and did not take into account that a significant part of the land use right is pledged to the Bank to ensure that other legal entities fulfill their obligations to repay the loan they received. Based on these judgments, the court concluded that the debtor had proved its worth within two months of the initiation of the bankruptcy case, and that there were no grounds for declaring K LLP bankrupt. The Court referred to the fact that the tax authority had not taken the measures provided for in Article 614 of the Tax Code to collect tax arrears out of court. However, the court ignored the information available in the case file that the Plaintiff had taken measures to restrict the disposal of the taxpayer's property. At the same time, it was established that there was no money in the debtor's bank accounts, two cars were sold at auction in order to partially repay the salary debt. Contrary to the provisions of Articles 221 and 77 of the CPC, the court of first instance in its decision indicated conclusions that were not based on evidence. The court's conclusions cannot be based on reasoning.
A law firm declaring a legal entity bankrupt because it does not pay taxes and other mandatory payments to the budget
During the consideration of the case, the court of first instance did not pay attention to the incompleteness of the investigation of circumstances of legal significance and conclusions based on reasoning. At the same time, the court of appeal did not take into account that LLP "I" actually refused the guarantee to pay the debt of LLP "K" for taxes and other mandatory payments not only by July 10, 2012, but also by the end of 2012. The Court of Appeal pointed out that the application for declaring K LLP bankrupt was filed during the sowing campaign, although according to established business practice, agricultural enterprises repay debts after the completion of agricultural work and the sale of the crop. Agricultural work on the lands of LLP "K" is performed by LLP "I", these works have not been completed on the day of the appeal hearing. However, the court of appeal did not take into account the provisions of paragraph 2 of article 103-1 of the Law, which establish the grounds for declaring an agricultural organization bankrupt. At the same time, the legislator does not link the date of filing an application for declaring an agricultural organization bankrupt with the beginning or end of the current year's agricultural cycle. The Court of Appeal did not examine the data contained in the minutes of the meeting of the Zerendinsky district Land Commission dated September 27, 2012, that LLP "I" was re-registering the right of temporary paid land use for agricultural land from land owned by LLP "K". When considering the case, the Court of cassation, contrary to the provisions of Articles 383-21 of the CPC, did not take into account that, when considering the case, the courts of first and appellate instances did not enforce the provisions of part 1 of Article 364 of the CPC in terms of the correct definition and clarification of circumstances relevant to the case, and the conformity of the court's conclusions with the circumstances of the case.
A law firm declaring a legal entity bankrupt because it does not pay taxes and other mandatory payments to the budget
The inconsistency of judicial acts of local courts with the requirements of Part 1 of Article 364 of the CPC indicates a significant violation of the law during the consideration of the case. In such circumstances, judicial acts of local courts are subject to cancellation with the referral of the case for a new hearing to the court of first instance.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
