Disputes related to appealing against the actions of a bankrupt manager, the existence of wage arrears to an employee is determined on the basis of primary accounting documents and accounting registers, but not on declarations.
Plaintiffs I. and T. filed a lawsuit with the bankruptcy trustee of LLP "D" (hereinafter – LLP) to recognize the refusal to include in the register of creditors' claims as illegal and to compel the restoration of rights. By the decision of the specialized interdistrict economic Court of Kostanay region dated July 16, 2019, the claim was partially satisfied. The refusal of the bankrupt manager to include in the register of creditors' claims of the LLP, primarily wage arrears and compensation in connection with loss of work to the plaintiffs, was declared illegal. The court ordered the bankrupt manager to include wage arrears and compensation in connection with the loss of work to the plaintiffs in the register of creditors' claims of the LLP in the first place. The rest of the plaintiffs' claims were left without satisfaction. By the decision of the judicial board for Civil Cases of the Kostanay Regional Court dated September 16, 2019, the court's decision was changed, overturned in the satisfied part with the issuance of a new decision to dismiss the claim in this part. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan raises the issue of reviewing the decision of the Judicial Board for Civil Cases of the Kostanay Regional Court dated September 16, 2019 due to a violation of uniformity in the interpretation and application of legal norms by courts. The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance and changed the decision of the court of first instance regarding the obligation of the bankrupt manager of D LLP to determine the amount of wage arrears, compensation for loss of work, compensation for unused vacation before AND.
Disputes related to appealing against the actions of a bankrupt manager, the existence of wage arrears to an employee is determined on the basis of primary accounting documents and accounting registers, but not on declarations.
She obliged the bankrupt manager of D LLP to determine the amount of salary arrears, compensation for loss of work, compensation for unused vacation before AND. taking into account the following: the amount of salary from October 1, 2016 to June 10, 2017, to be determined in the amount of 400,000 tenge, in the period from June 10, 2017 – in the amount of 113,450 tenge, in 2018 – in the amount of 120,250 tenge for the following reasons. It follows from the case file that by the decision of the specialized interdistrict economic court of Kostanay region dated July 3, 2018, the LLP was declared bankrupt with the initiation of bankruptcy proceedings. By order of the Department of State Revenue for the Kostanay region of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan (hereinafter referred to as the authorized body) dated July 23, 2018, B. (hereinafter referred to as BU) was appointed as the bankrupt manager of the LLP. On May 8, 2019, I. and T. They applied to the BU with a request to include in the register of creditors of the LLP the debt owed to them on wages in the first place and loan agreements in the fourth row for a total amount of 36,953,134 tenge. On May 20, 2019, the BU refused to include the plaintiffs' claims in the register, referring to subparagraph 3) of paragraph 7 of Article 90 of the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy" (hereinafter referred to as the Law), indicating that the plaintiffs are the founders (participants) of the LLP. In addition, I. stated that the amount of remuneration from the rehabilitation manager from April 24, 2017 may not exceed 50 MCI. The plaintiffs, having appealed the refusal of the BU in court, asked the court to oblige the BU to include their claims in the register of creditors' claims of the LLP. Partially satisfying the plaintiffs' claims, the court of first instance concluded that the BU's refusal to include the plaintiffs' claims in the register of creditors' claims of the LLP was illegal, and the plaintiffs had not missed the 10-day pre-trial appeal period. By changing the court's decision and rejecting the plaintiffs' claim, the court of appeal concluded that the debt owed to the plaintiffs was not confirmed by the LLP's tax returns, and the plaintiffs missed the 10-day deadline for appealing the actions of the LLP to the court. These conclusions of the court of appeal are unfounded on the following grounds. The plaintiffs I. and T. are the founders of the LLP. Both were in an employment relationship with an LLP. I. on the basis of an employment contract dated March 1, 2007, he worked as a director of the LLP, and T. On the basis of an employment contract dated January 1, 2004, she worked as a deputy director of the LLP. By the decision of the specialized interdistrict economic Court of Kostanay region dated December 4, 2014, a rehabilitation procedure was applied to the LLP. By a court ruling dated May 6, 2015, the LLP's rehabilitation plan was approved, and the right to manage the LLP's property and affairs in the rehabilitation procedure was reserved for the head of the LLP, I.
By a court ruling dated April 26, 2018, the rehabilitation procedure against the LLP was terminated, and a bankruptcy case was initiated. By the order of the BU dated August 25, 2018, I. and T. were dismissed from their jobs in connection with the liquidation of the LLP. The claims for the recovery of wage arrears by the plaintiffs were filed for the period from October 1, 2016 to August 25, 2018, that is, during the period of application of the rehabilitation procedure for the LLP before declaring it bankrupt. The court of appeal, referring to the results of desk control conducted by the authorized body, refused to satisfy the plaintiffs' claim, pointing out that when comparing the amount of the plaintiffs' claims with the data of the declaration on personal income tax and social tax (TNF 100.00, 200.00), the debt to the plaintiffs was not established. Meanwhile, the LLP's wage arrears to the plaintiffs are confirmed by the BU certificate, primary accounting documents, namely: payroll and payroll statements, accounting registers. In addition, tax declarations are submitted for tax accounting, which may be amended and supplemented by the taxpayer in accordance with the procedure established by Article 211 of the Tax Code of the Republic of Kazakhstan. The presence of wage arrears to an employee is determined on the basis of primary accounting documents and accounting registers, and not by declarations. In this regard, the conclusions of the appeals board on the non-confirmation of the LLP's wage arrears to the plaintiffs are unfounded. It should be noted that the salary of the plaintiffs was correctly determined by the appeals board. Thus, according to the Rehabilitation Plan of the LLP, approved by the court ruling of May 6, 2015, the monthly salary of the director is set at 400,000 tenge, the deputy director - 399,000 tenge. Therefore, the court correctly stated that the amount of the plaintiffs' salary should not exceed the amount established by the Rehabilitation Plan, agreed upon by the creditors' meeting and approved by the court. At the same time, the amount of remuneration of the rehabilitation manager Ibraeva S. Starting from June 10, 2017, it should not exceed 50 MCI, according to the order of the Minister of Finance of the Republic of Kazakhstan dated April 21, 2017 No. 265 (hereinafter referred to as the Order), which defines the maximum limits of the basic remuneration for rehabilitation managers. The Appeals Board came to the correct conclusion that the Order was officially published on May 30, 2017 in the Reference Control Bank of Regulatory Legal Acts of the Republic of Kazakhstan, therefore, it entered into force on June 10, 2017. In this regard, starting from June 10, 2017, the maximum monthly remuneration of the rehabilitation manager is It should not exceed 113,450 tenge in 2017 and 120,250 tenge in 2018. According to article 83 of the Law, until a decision is made to declare the debtor bankrupt and appoint a bankruptcy administrator, the right to manage the debtor's property and affairs remains with the person who managed the rehabilitation procedure. In connection with the above, restrictions on the payment of the maximum remuneration of the rehabilitation manager not exceeding 50 MCI remain in place until the LLP is declared bankrupt.
Disputes related to appealing against the actions of a bankrupt manager, the existence of wage arrears to an employee is determined on the basis of primary accounting documents and accounting registers, but not on declarations.
Consequently, I.'s salary from April 27, 2018 (termination of rehabilitation) to August 25, 2018 (date of his dismissal) must be calculated at the rate of 120 250 tenge per month. At the same time, the appeals board, having correctly determined the amount of the plaintiffs' salaries, unreasonably denied them satisfaction of the claim, referring to the applicants' omission of the ten-day period established by articles 91 of the Law for appealing the BU decision. Thus, the appeals board incorrectly calculated the deadline for applicants to apply from January 3, 2019, when the plaintiffs' claims were excluded from the register of creditors' claims by notification of the BU. Meanwhile, the plaintiffs applied for inclusion in the register of creditors' claims of the LLP on May 8, 2019. The BU denied the plaintiffs their claims for inclusion in the register on May 20, 2019. Consequently, the time limit for appealing the BU's decision was calculated from the moment the BU's refusal was received, that is, from May 20, 2019. The application to the court was filed on May 29, 2019. Accordingly, the conclusions of the judicial board on the applicants' omission of the ten-day period are incorrect.
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