Bankruptcy of an absent debtor

According to subparagraph 15 of article 1 of the Law "On Rehabilitation and Bankruptcy" (hereinafter referred to as the Law), an absent debtor is a debtor whose place of residence or place of registration or the location of a permanent body, as well as participants and officials, without whom the debtor cannot carry out its activities, cannot be established within six months. By virtue of the provisions of paragraph 1 of Article 5 of the Law, the debtor's insolvency is the basis for the creditor's application to the court for declaring the debtor bankrupt or applying a rehabilitation procedure. This provision of the Law defines the conditions under which the debtor is considered insolvent. In accordance with article 57 of the Law, a decision on declaring a debtor bankrupt and liquidating it without initiating bankruptcy proceedings is made by a court with the consent of the authorized body in respect of the absent debtor, taking into account the conclusion of the interim administrator on the absence of the debtor at the address indicated in the application for declaring the debtor bankrupt, and on the absence of property (assets) at the expense of which it is possible to carry out bankruptcy procedure. The liquidation of the debtor without initiating bankruptcy proceedings is carried out by the authorized body in accordance with the procedure established by Article 118 of this Law. Thus, the tax authority applied to the court for declaring the absent debtor of T LLP bankrupt, arguing that the debtor has a tax debt and is absent at his location. The court's decision of October 3, 2017 satisfied the application. In granting the application, the court took into account the existence of the Partnership's debt to the budget in the amount of 177,388,249 tenge, the absence of property, the death of the founder and the departure of the head of the legal entity for permanent residence outside the Republic of Kazakhstan. The court has reliably established that the debtor has been inactive for a long time, does not submit tax reports, and has no property at the expense of which it is possible to carry out bankruptcy proceedings. The authorized body agreed with the applicant's request to declare the absent debtor of T LLP bankrupt.

Bankruptcy of an absent debtor

By a court decision, the application of the tax authority for declaring the absent debtor of LLP "A" bankrupt was refused. It follows from the provisions of subparagraph 5 of paragraph 1 of Article 45 of the Law that documents confirming that the debtor is absent in cases of filing an application for declaring the debtor bankrupt are attached to the creditor's application for declaring the debtor bankrupt. In confirmation of the absence of the debtor at the legal address, the applicant submitted the acts of the tax survey of the taxpayer's actual location dated October 7, 2015, September 21, 2016, February 15, 2017 and October 19, 2017.  

According to the address certificate, the founder and head of M. is registered at the address: Aktobe, I. Street, and was removed from registration on May 5, 2017. According to the rules of paragraphs 5, 6 of Regulatory Resolution No. 5, when applying to the court to initiate bankruptcy proceedings against an absent debtor with accounts payable, applicants are required to provide evidence of the absence of legal entities at the location indicated in the constituent documents or at the actual address, as well as evidence of the absence of founders, participants and officials., without which this legal entity cannot carry out its activities; at the same time, it is necessary to confirm the expiration of the absence period established by law for absent debtors - within six months, for absent legal entities - within one year until the moment of the applicant's appeal to the court. Bankruptcy of an absent debtorwhen the applicant applied to the court for declaring the absent debtor of LLP "A" bankrupt, the applicant did not comply with the one-year absence period established by law for the founder and head of the legal entity M. Taking into account the above circumstances, the court reasonably refused to satisfy the application. 

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