The bankruptcy trustee's remuneration is posted. Accounting for remuneration and compensation of expenses for the bankruptcy trustee

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Published: 07/24/2019

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All activities of the arbitration manager are regulated by the provisions of Federal Law No. 127-FZ “On Insolvency (Bankruptcy)”. This normative act regulates all aspects of the activities of an arbitration manager, including when it comes to such a type of manager as a bankruptcy trustee.

• Legal basis
• What is the arbitration manager's remuneration paid for?
• Calculation of a fixed amount
• Determination of the percentage of remuneration
• Who pays remuneration to the arbitration manager

Fixed amount

Remuneration in part of a fixed amount is accrued during the entire period of activity of the arbitration manager in the following amounts:

– administrative manager – 15,000 rubles. per month;

– temporary and bankruptcy manager – 30,000 rubles. per month;

– external manager – 45,000 rubles. per month.

Depending on the volume and complexity of the work performed by the bankruptcy manager, the arbitration court, based on the decision of the meeting of creditors (a reasoned petition of the persons participating in the bankruptcy case), may increase the fixed amount of remuneration.

Such rules are established by paragraphs 3 and 5 of Article 20.6 of the Law of October 26, 2002 No. 127-FZ.

Costs in a bankruptcy case: interim trustee vs bankruptcy creditor - applicant

Factual circumstances . On 12/01/2016, a monitoring procedure was introduced in relation to the debtor and a temporary manager was approved; on 01/10/2019, bankruptcy proceedings against the debtor were terminated on the basis of paragraph eight of paragraph 1 of Article 57 of the Federal Law “On Insolvency (Bankruptcy)” due to the lack of funds sufficient to reimburse the legal expenses for carrying out procedures applied in a bankruptcy case.

The temporary manager applied to the arbitration court with an application to collect from the bankruptcy creditor - the applicant in the bankruptcy case the debt to pay a fixed amount of remuneration to the temporary manager for a two-year (!) observation period in the amount of 760,000 rubles. , as well as other expenses.

Task . Reduce the amount of expenses recovered from the applicant in the bankruptcy case in the bankruptcy case of the debtor. At the same time, it was complicated by the fact that the actions of the temporary manager in the monitoring procedure were not appealed by the bankruptcy creditor; in the monitoring procedure, the temporary manager had already partially recovered from the debtor the debt to pay a fixed amount of remuneration to the temporary manager, and our client at one time did not object to such collection from the debtor, Currently, the bankruptcy creditor itself has been declared bankrupt.

In addition, the bankruptcy trustee of the applicant in the bankruptcy case sought advice only at the stage of appeal against the ruling of the arbitration court, by which the demands of the temporary manager had already been satisfied in full, therefore we were unable to cancel the judicial act of the first instance and send the separate dispute for a new consideration, since the higher courts, as expected, did not take into account new arguments and circumstances that had not previously been examined by the court of first instance.

Meanwhile, the following arguments stated in the court of first instance may help reduce the amount of costs recovered from the applicant in a bankruptcy case for the monitoring procedure:

1. Expenses incurred, including unpaid remuneration to the arbitration manager, in respect of which it is proven that he knew or should have known about the lack of funds to repay them from the debtor’s property, are not subject to recovery from the applicant.

As is known, by virtue of paragraph 3 of Article 59 of the Federal Law “On Insolvency (Bankruptcy)”, if the debtor does not have funds sufficient to pay court costs and expenses for paying remuneration to the arbitration manager in a bankruptcy case, the applicant is obliged to pay these costs in part, not repaid at the expense of the debtor's property. According to this norm, the only basis for imposing the obligation to repay expenses in a bankruptcy case on the applicant is the debtor’s insufficient funds (clause 4 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 25, 2013 No. 97 “On some issues related to the remuneration of the arbitration manager in bankruptcy”).

In paragraph 15 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 17, 2009 No. 91 “On the procedure for paying off expenses in a bankruptcy case,” it is explained that if the arbitration manager discovers that the debtor’s property is insufficient to pay expenses in a bankruptcy case, he does not have the right to make such expenses in relying on subsequent compensation by the applicant, but is obliged to apply to the court considering the bankruptcy case with an application to terminate the proceedings on the basis of paragraph eight of paragraph 1 of Article 57 of the Bankruptcy Law. If the arbitration manager does not apply to the court with the said application, the expenses subsequently incurred by him, including the unpaid remuneration to the arbitration manager, in respect of which it is proven that he knew or should have known about the lack of funds to repay them at the expense of the debtor’s property , are not subject to recovery from the applicant. This clarification also applies to such expenses in a bankruptcy case as the remuneration of an arbitration manager (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 28, 2013 No. 12889/12 in case No. A73-3983/2011).

Thus, the obligation of the applicant in a bankruptcy case to repay the costs of the debtor's bankruptcy case arises from the moment the arbitration manager discovers the fact that the debtor's property is insufficient to pay the costs of the bankruptcy case . At the same time, the period during which the arbitration manager could and should have identified the circumstances provided for in paragraph 15 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 17, 2009 No. 91 “On the procedure for paying off expenses in a bankruptcy case,” and for which he, therefore, has the right to demand the applicant's fixed remuneration is subject to investigation by the court by virtue of the direct instructions of the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 12889/12 dated May 28, 2013 in case No. A73-3983/2011.

However, during the consideration of our separate dispute, the court of first instance did not establish the above circumstances. The specific calendar date from which the temporary manager knew or should have known about the lack of funds to repay them from the debtor’s property was never established by the court.

Thus, during the preparation of the appeal, we analyzed the materials of the bankruptcy case about the activities carried out by the temporary manager (requests made by him to the registration authorities and banks, answers to them, analysis of the financial condition of the debtor), and it was established that by the time of completion of the observation established court (04/12/2017, four months later), the temporary manager had complete information about the debtor’s financial condition, including the lack of registered property, the debtor’s failure to carry out any business activities, the lack of up-to-date accounting documentation, as well as evasion the head of the debtor from its transfer to a temporary manager.

Meanwhile, instead of filing a petition with the arbitration court to terminate bankruptcy proceedings, the temporary manager continued to carry out the following actions to carry out the monitoring procedure until September 13, 2018 (that is, for another 1 year 5 months (!)) :

— consideration by an arbitration court of a creditor’s claim submitted within the period established by law (included in the register of creditors’ claims only a year later);

— consideration by the arbitration court of the interim manager’s petitions to postpone the first meeting of creditors, to request the debtor’s documentation, to collect from the debtor part of the debt for a fixed amount of remuneration, to cancel interim measures in the form of postponing the first meeting of creditors;

— holding the first meeting of creditors;

— consideration by the arbitration court of the temporary manager’s petition to terminate bankruptcy proceedings dated September 13, 2018 (satisfied on January 10, 2019).

Thus, after 04/12/2017, knowing about the absence of the debtor’s property, the temporary manager continued to carry out essentially technical actions to implement the monitoring procedure, clearly counting on the subsequent reimbursement of expenses incurred by the applicant in the bankruptcy case , which is an abuse of right (clause 1 of Article 10 of the Civil Code Code of the Russian Federation).

2. The size of the fixed amount of remuneration of the interim manager is subject to a proportionate reduction, since there were periods when the manager actually shied away from exercising his powers, and also taking into account the significant duration of the supervision procedure and the relatively small amount of work actually done by the arbitration manager.

Thus, in paragraph 5 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 25, 2013 No. 97 “On some issues related to the remuneration of an arbitration manager in bankruptcy,” it is explained that when considering the issue of reducing the amount of remuneration of an arbitration manager, the court should take into account, in particular, whether there have been cases whether the court recognized the actions of this manager as illegal, or the expenses incurred by him at the expense of the debtor as unreasonable, or the transactions he made as invalid, whether he caused losses to the debtor, and whether there were periods when the manager actually evaded the exercise of his powers . The issue of reducing the amount of the arbitration manager's remuneration is considered by the court if there are objections from a person participating in the bankruptcy case or the arbitration process in the bankruptcy case when considering the arbitration manager's application for the recovery of such remuneration .

The counter-remuneration of the arbitration manager , paid for the proper performance of the duties assigned to him (clause 1 of Article 20.4, paragraph 4 of Article 20.6 of the Bankruptcy Law) means that the arbitration manager cannot be deprived of remuneration if he fulfilled the duties assigned to him in a specific bankruptcy procedure (regardless of the grounds for its introduction), except in cases where it is established that the arbitration manager improperly performed his duties, actually evaded the exercise of his powers, or knew that there were no grounds for continuing to exercise his duties (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 05/28/2013 No. 12889/12 in case No. A73-3983/2011).

Thus, the right of the arbitration manager to remuneration is in a cause-and-effect relationship with the actual performance of the duties assigned to him , payment of remuneration to the arbitration manager is made for his activities in bankruptcy proceedings in the interests of the debtor and creditors, and the final assessment of the amount of remuneration of the arbitration manager applied in the case bankruptcy, is the prerogative of the court, which has the right to decide the issue of reducing the payment of remuneration, including in connection with non-fulfillment or improper fulfillment of the duties assigned to it (resolution of the Eighteenth Arbitration Court of Appeal dated September 20, 2019 in case No. A07-5006/2013, resolution Fifteenth Arbitration Court of Appeal dated September 23, 2019 in case No. A32-13703/2012).

In our case, the interim manager's arguments about the proper performance of his duties did not correspond to the evidence available in the bankruptcy case.

Thus, on February 22, 2017, the temporary manager applied to the arbitration court to request the debtor’s documentation from his manager. The temporary manager’s application was left without progress until 04/03/2017 due to procedural violations, and subsequently the period for leaving the application without action was extended twice due to the fact that the applicant did not eliminate the procedural violations . By ruling of the arbitration court dated June 20, 2017, the application of the temporary manager was returned based on the petition of the temporary manager himself dated June 16, 2017 .

Thus, in the period from 04/04/2017 to 06/16/2017, the temporary manager illegally inactive and did not comply with the demands of the arbitration court to correct procedural violations committed when filing an application for documentation from the head of the debtor dated 02/22/2017. The temporary manager again applied to the arbitration court with a similar application only on 03/05/2018, that is, eight months later. Thus, a fixed remuneration of 330,000 rubles . for the period from 04/04/2017 to 03/04/2018 (11 months), during which the temporary manager avoided fulfilling his duties, was not subject to recovery from the applicant in the bankruptcy case.

In addition, according to paragraph 6 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 25, 2013 No. 99 “On procedural deadlines,” if the application is left without progress and after the expiration of the established period the arbitration court does not have information about the elimination by the applicant of the circumstances that served as the basis for leaving it without progress , then the court finds out whether the applicant (taking into account the date of receipt of a copy of the ruling) had sufficient time to eliminate the circumstances specified in the ruling and whether the court received information from the applicant about the late receipt of the ruling or other objective obstacles to eliminating these circumstances within the deadline or petition on extending the period for leaving an application without progress due to such obstacles. If there is a sufficient period for the applicant to eliminate the circumstances that served as the basis for leaving the application without progress, and there is no information about obstacles (petitions to extend the period), the court returns the application with reference to paragraph 4 of part 1 of Article 129 of the Arbitration Procedure Code of the Russian Federation no later than the day following the day expiration of the period for leaving the application without movement.

In cases where the court does not have such information, it, on its own initiative, sets a new deadline (or, at the request of the applicant, extends the deadline) for leaving the application without progress, about which it issues a ruling. If the circumstances specified in the ruling on leaving the application without progress are not eliminated within the re-established period, the application with the attached documents is returned to the applicant no later than the day following the day of expiration of this period.

Meanwhile, the arbitration court, in violation of the specified clarifications of the Supreme Arbitration Court of the Russian Federation, again extended the period for leaving the application of the temporary manager without progress, although it was obliged to return it no later than 05/06/2017. Thus, expenses in the form of a fixed amount of remuneration for the temporary manager for the period from 05/06/2017 (the date on which the application should have been returned) to 06/20/2017 (the date of the actual return of the application) (1 month and 14 days) in the amount of 44,000 rubles. could not be assigned to the applicant in the bankruptcy case , since he should not be held responsible for the illegal actions of the arbitration court hearing the bankruptcy case.

3. The period from the date the temporary manager files a petition to terminate bankruptcy proceedings and until the date of the relevant ruling is not included in the calculation of the fixed amount of the temporary manager’s remuneration.

According to paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 25, 2013 No. 97 “On some issues related to the remuneration of an arbitration manager in bankruptcy,” the period from the date the bankruptcy manager filed a petition to complete the bankruptcy proceedings and until the date of entry into the unified state register of legal entities of the liquidation of the debtor (clauses 2 - 4 of Article 149 of the Bankruptcy Law) is not included in the calculation of the fixed amount of the bankruptcy trustee's remuneration.

Thus, the participation of a temporary manager in a court hearing to consider a petition to terminate bankruptcy proceedings cannot be the basis for the accrual and payment of remuneration to the manager . The remuneration of the arbitration manager after filing a petition to terminate the proceedings against the debtor can be recovered in full or in the appropriate part, depending on the volume and complexity of the work carried out during this period. The performance of actions by the arbitration manager to publish information about the termination of bankruptcy proceedings certainly does not imply the payment of remuneration to the arbitration manager for the period before the date of completion (termination) of the bankruptcy procedure, otherwise, the provisions of paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 25, 2013 No. 97 would lose their meaning (resolution of the Eighteenth Arbitration Court of Appeal dated September 17, 2019 in case No. A07-32234/2017, resolution of the Eighteenth Arbitration Court of Appeal dated September 10, 2018 in case No. A76-16710/2017).

Thus, in our case, by decision of the arbitration court, a court hearing was scheduled to consider the issue of terminating bankruptcy proceedings at the request of the temporary manager, stated at the court hearing on September 13, 2018.

By a ruling of the arbitration court dated January 10, 2019 , the debtor’s bankruptcy case was terminated on the basis of paragraph eight of paragraph 1 of Article 57 of the Federal Law “On Insolvency (Bankruptcy)” due to the lack of funds sufficient to reimburse legal expenses for the procedures used in the bankruptcy case.

As follows from the materials of the bankruptcy case, from September 13, 2018 to January 10, 2019 no measures were taken to implement the monitoring procedure by the temporary manager ; during this period, the arbitration court considered only the petition of the temporary manager to terminate the bankruptcy proceedings, therefore, there are grounds for there was no accrual or collection of a fixed amount of remuneration for the temporary manager for the specified period.

Thus, when considering a separate dispute, the court did not apply the explanations given in paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 25, 2013 No. 97 “On some issues related to the remuneration of an arbitration manager in bankruptcy”, and included in the amount of the fixed remuneration collected from our client the period from the date the temporary manager filed a petition to terminate the bankruptcy proceedings (09/13/2018) until the date of termination of the proceedings (01/10/2019), which resulted in the illegal collection of a fixed remuneration of the temporary manager in the amount of 118,000 rubles . (for 3 months and 28 days).

4. The assessment of the sufficiency of the debtor’s property to cover the costs of the bankruptcy case in the monitoring procedure should be carried out not only by the applicant in the case, but also by the arbitration court hearing the debtor’s bankruptcy case.

In accordance with Article 51 of the Federal Law “On Insolvency (Bankruptcy),” a bankruptcy case must be considered at a meeting of the arbitration court within a period not exceeding seven months from the date of receipt of the application for declaring the debtor bankrupt in the arbitration court. This period can be extended to ten months , that is, increased by three months in relation to Part 2 of Article 152 of the Arbitration Procedure Code of the Russian Federation (clause 27 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 25, 2013 No. 99 “On procedural deadlines”).

In our case, the bankruptcy creditor’s application to declare the debtor bankrupt was received by the arbitration court on September 7, 2016. Thus, the bankruptcy case had to be considered by the arbitration court before 07/07/2017 .

By the ruling of the arbitration court dated December 1, 2016, a monitoring procedure was introduced in relation to our debtor; the issue of completing the monitoring procedure was scheduled for April 12, 2017, was repeatedly postponed until July 12, 2017, and by virtue of the direct instructions of the law and clarifications of the Supreme Arbitration Court of the Russian Federation, it was necessary to consider the merits precisely at the court hearing on July 12, 2017 .

Meanwhile, after 07/12/2017, the court hearing to complete surveillance against the debtor was postponed until 09/13/2018 eight times, that is, within 1 year 2 months! At the same time, it was impossible to establish the procedural grounds for postponing the trial due to the fact that all the determinations on the postponement of the court hearing in the case indicated and posted in the Card Index of Arbitration Cases were drawn up in the form of protocol determinations, which is a violation of the procedural law .

Thus, in accordance with Part 2 of Article 184 of the Arbitration Procedure Code of the Russian Federation, a determination is made by an arbitration court in the form of a separate judicial act or a protocol ruling. The arbitration court issues a ruling in the form of a separate judicial act in all cases if the Arbitration Procedure Code of the Russian Federation provides for the possibility of appealing the ruling separately from the appeal of the judicial act, which ends the consideration of the case on the merits .

According to paragraph 3 of Article 61 of the Federal Law “On Insolvency (Bankruptcy)”, rulings of the arbitration court that are adopted in the framework of a bankruptcy case, but are not provided for by the Arbitration Procedural Code of the Russian Federation and in respect of which it is not established that they are subject to appeal, can be appealed in the appellate court. order no later than fourteen days from the date of their adoption (clause 35.2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2012 No. 35 “On some procedural issues related to the consideration of bankruptcy cases”).

Thus, the court’s ruling regarding the extension of the observation period is subject to appeal by virtue of the direct indication in paragraph 3 of Article 61 of the Bankruptcy Law, and therefore must be issued in the form of a separate judicial act (ruling of the Arbitration Court of the North Caucasus District dated 10/01/2019 in case No. A32-39724/2018 and the resolution of the Fifteenth Arbitration Court of Appeal dated 08/02/2019 in case No. A32-39724/2018, the resolution of the Tenth Arbitration Court of Appeal dated 07/18/2018 in case No. A41-64237/2014, the resolution of the Fourth Arbitration Court of Appeal dated 02.08.2017 in case No. A58-6957/2013, resolution of the First Arbitration Court of Appeal dated 08.10.2015 in case No. A39-6694/2014, resolution of the Eighth Arbitration Court of Appeal dated 16.06.2015 in case No. A46-7193/2014, resolution Arbitration Court of the Volga-Vyatka District dated December 7, 2011 in case No. A39-5218/2010).

During the consideration of our separate dispute, the temporary manager referred to the fact that the applicant in the bankruptcy case did not appeal the court ruling to extend the observation period. Meanwhile, the fact that the bankruptcy trustee of the applicant in the bankruptcy case did not appeal the protocol rulings of the arbitration court on postponing the issue of completing the monitoring procedure in relation to the debtor does not cancel the procedural illegality of these judicial acts by virtue of part 2 of article 184 of the Arbitration Procedure Code of the Russian Federation and paragraph 3 of article 61 of the Federal Law “On insolvency (bankruptcy).”

The interim manager's petition to terminate bankruptcy proceedings was also considered by the arbitration court for almost four months .

Thus, the arbitration court, in violation of the direct instructions of the procedural law, considered the debtor’s bankruptcy case for 2 years and 4 months instead of the 10 months established by law.

The interim manager pointed out in his objections that, being an applicant in the bankruptcy case of the debtor, the bankruptcy creditor could not but know about the procedural consequences associated with the initiation of a bankruptcy case, about the measures taken by the arbitration manager related to the search for the debtor’s property, the analysis of the financial condition, in including the possibility of imposing costs on him as the applicant in the bankruptcy case in this case.

Meanwhile, the assessment of the sufficiency of the debtor’s property to cover the costs of the bankruptcy case - both at the stage of checking the validity of the application for declaring the debtor bankrupt, and during the consideration of the case ( and above all in the monitoring procedure ) - should be carried out not only by the applicant in the case, but also arbitration court and arbitration manager (clause 4.2 of the resolution of the Constitutional Court of the Russian Federation dated 03/05/2019 No. 14-P “In the case of verifying the constitutionality of Article 15, paragraph 1 of Article 200 and Article 1064 of the Civil Code of the Russian Federation, subparagraph 14 of paragraph 1 of Article 31 of the Tax Code of the Russian Federation Federation, paragraph two of paragraph 1 of Article 9, paragraph 1 of Article 10 and paragraph 3 of Article 59 of the Federal Law “On Insolvency (Bankruptcy)” in connection with the complaint of citizen V.A. Nuzhin).

Thus, the applicant in a bankruptcy case cannot be burdened with the consequences of the procedural inaction of the arbitration court considering the bankruptcy case , including its failure to take timely measures to assess the sufficiency of the debtor’s property to cover the costs of the bankruptcy case and compliance with the procedural deadline for consideration of the bankruptcy case, which in our case, it caused an unreasonable delay in the monitoring procedure and thereby the recovery of expenses in the bankruptcy case from the bankruptcy creditor - the applicant.

5. The applicant in the bankruptcy case is declared bankrupt; the execution of an unfounded judicial act to recover funds in a significant amount will lead to a violation of the rights of his creditors.

Since in our case the applicant in the bankruptcy case was himself declared bankrupt, during the consideration of a separate dispute also arose about the order of repayment of the claims of the temporary manager in the bankruptcy case of the applicant in the bankruptcy case.

Thus, the application for declaring our client, the applicant in the bankruptcy case, bankrupt was accepted 21.08.2017.

The temporary manager insisted that the requirement to pay him funds in the amount of 760,000 rubles. arose on September 13, 2019 (from the date of entry into force of the judicial act on the collection of expenses in the bankruptcy case), that is, after the acceptance of the application for declaring our client bankrupt (08/21/2017), and therefore is current with reference to paragraph 16 of the resolution of the Plenum of the Supreme Arbitration Court RF dated July 23, 2009 No. 63 “On current payments on monetary obligations in a bankruptcy case.” Meanwhile, in our opinion, the monetary obligation of the applicant in a bankruptcy case to repay the costs of the debtor’s bankruptcy case arises from the moment the arbitration manager discovers the fact that the debtor’s property is insufficient to pay the costs of the bankruptcy case , and not from the moment it comes into force a judicial act on the collection of these expenses, as the temporary manager believed.

If the temporary manager, having information about the insufficiency of the debtor’s property to pay off the costs of his bankruptcy case, had promptly applied to the arbitration court with an application to terminate the bankruptcy proceedings at the court hearing on the completion of supervision on April 12, 2017 , then the temporary manager’s demands for reimbursement of expenses would be included in the register of claims of the applicant’s creditors in the bankruptcy case along with other creditors, since the bankruptcy case was initiated by the arbitration court only on August 21, 2017 .

During the consideration of a separate dispute, the applicant in the bankruptcy case held a meeting of creditors in his bankruptcy case, at which the creditors, by a majority vote of the creditors present at the meeting of creditors, expressed disagreement with the financing of the recovered amount of expenses in the debtor's bankruptcy case at the expense of the applicant's bankruptcy estate. bankruptcy case and decided to approve the actions of the bankruptcy trustee to challenge the unreasonable current claims of the creditor - the temporary manager.

Meanwhile, while we were taking measures to appeal the judicial act on the collection of expenses in the bankruptcy case and suspending its execution, the arbitration court issued a writ of execution, and the temporary manager, referring to the current nature of his claims, managed to present it for execution to the bank, where our The bankruptcy creditor opened a main current account and had funds in it, and received satisfaction of its unfounded claims in full, which led to a violation of the rights of creditors in the bankruptcy case of our client.

In order to prevent such a development of events, the applicant in a bankruptcy case is recommended to apply to the arbitration court, which is considering his bankruptcy case, with an application to resolve the disagreements that have arisen between him and the temporary manager regarding the priority of satisfying the claims of this creditor , established by a judicial act of the arbitration court. At the same time, if there are funds in the main account of the applicant in the bankruptcy case, it is necessary to file a petition for interim measures in the form of a prohibition on the bankruptcy trustee of the applicant in the bankruptcy case from distributing funds from his current account until the judicial act on the application enters into legal force on resolving disagreements about the priority of satisfying the demands of the temporary manager.

We will consider in more detail the nuances that need to be taken into account when executing a judicial act on the collection of expenses in a bankruptcy case if the applicant in the bankruptcy case is himself declared bankrupt in one of the following articles.

Interest amount

The amount of interest on the arbitration manager's remuneration depends on the size of the book value of the organization's assets or the size of the satisfied claims of creditors. The percentage amounts are given in paragraphs 10–13 of Article 20.6 of the Law of October 26, 2002 No. 127-FZ. For example, the amount of interest on the remuneration of a temporary manager when the book value of the organization’s assets is up to 250,000 rubles. is four percent of the book value of assets. The book value of the organization's assets is determined as of the last reporting date preceding the start of the bankruptcy procedure (Clause 14, Article 20.6 of the Law of October 26, 2002 No. 127-FZ).

Interest on remuneration is paid to the arbitration manager within 10 calendar days from the date of completion of the bankruptcy procedure (Clause 9, Article 20.6 of the Law of October 26, 2002 No. 127-FZ).

From what sources is his work paid?

All payments to the bankruptcy trustee are made at the expense of the defaulter. Very rarely does the Federal Law specify other sources regarding a specific case. In a situation where the bankrupt enterprise does not own money or any property, remuneration is paid to the arbitration representative by the applicant or applicants.

In cases where the applicant is our debtor, then the debtor’s founders will have to make payments.

It is important to know! A bankruptcy manager must thoroughly study the business he is leading. In the event that he understands that the bankrupt company does not have enough property and money to satisfy all the claims of creditors and pay remuneration, he must declare this. If he does not declare, he will not be able to return the invested funds for office work.

During a bankruptcy case, the manager is a temporary employee of the company. His remuneration is reflected on the company's balance sheet as “other”.

Accounting

An arbitration manager who performs part of the management functions during the bankruptcy procedure of an organization does not become a full-time employee of the organization, therefore the remuneration accrued to him is not a salary. When calculating remuneration, use account 76 “Settlements with other debtors and creditors”. The functions of the arbitration manager are related to management during the bankruptcy procedure. Therefore, in accounting, write off his remuneration as expenses for ordinary activities (clauses 5 and 7 of PBU 10/99). Do the following wiring:

Debit 26 (44) Credit 76

– remuneration was accrued to the arbitration manager.

– How often do courts increase remuneration?

– Not often, it should be noted. Especially where in the register of creditors’ claims most of the claims belong to the Federal Tax Service of Russia. In general, in practice there is already an understanding of in what cases our remuneration can be increased. The determining factors may be the complexity of the functions you perform and the large volume of work. For example, in one of the cases, payments to the manager were increased due to a large number of creditors and a significant amount of debt owed to the company (more than 100 million rubles). In another case, it was possible to increase the payment by proving the sufficiency of the debtor’s financial resources. At the same time, the availability of property on the balance sheet and the size of receivables were taken into account. From personal experience, I can say that it is most difficult to achieve an increase in payments if the main creditor is the tax service.

Payment of personal income tax and insurance premiums

From income from private practice, the arbitration manager is obliged to independently pay:

– Personal income tax (subclause 2, clause 1, clause 2, article 227 of the Tax Code of the Russian Federation, letters of the Federal Tax Service of Russia dated June 10, 2011 No. ED-4-3/9304, Ministry of Finance of Russia dated October 8, 2010 No. 03-11- 11/261);

– contributions for compulsory pension (social, medical) insurance (clause 2, part 1, article 5 of the Law of July 24, 2009 No. 212-FZ).

Thus, when paying remuneration, the arbitration manager does not need to withhold personal income tax and charge insurance premiums. Do not charge premiums for insurance against accidents and occupational diseases. These contributions are subject to only those amounts that are paid to employees working under employment contracts (Clause 1, Article 5 of Law No. 125-FZ of July 24, 1998).

The procedure for calculating other taxes depends on what taxation system the organization uses.

Who is an arbitration manager and what does he do?

The creditor and debtor rarely come to a consensus on their own. The actions of any of them are actions only in their own interests. Consequently, there is a need for a third party, which is absolutely not interested. The arbitration manager will help the creditor and the defaulting debtor achieve results. What does this arbitration representative do? Let's sort everything out piece by piece.

1. Such a person is mainly the defender of the bankrupt. You could even say, an employee of a company or enterprise that has gone bankrupt. All efforts and actions of the manager will be aimed at improving the situation of the debtor.
2. Such a representative is appointed by the judicial body, so the interests of the court are also taken into account here. And the interests of the creditor too.
3. The arbitration representative acts within the framework of the law, representing his own interests.

The duties of the authorized person include:

1. Analysis of the debtor’s work in all types of areas of its activity.
2. Trying in every way to preserve the company's property.
3. Maintaining a list of creditors with requirements presented to the borrower.
4. Keeping records of all transactions.
5. Disclosure of information about premeditated bankruptcy.
6. If administrative violations are detected on the part of the defaulting debtor, the manager must report this situation to the authorized bodies.
7. Involvement of other specialists.

If you want to become a manager, you need to have:

• Russian citizenship;
• higher education;
• previously held the position of assistant manager;
• have experience in leadership positions;
• there should be no criminal record or administrative fines.

BASIC

When calculating income tax, include the amount of remuneration among other expenses associated with managing the company (subclause 18, clause 1, article 264 of the Tax Code of the Russian Federation, letter of the Ministry of Taxes of Russia dated May 7, 2004 No. 04-3-01/265).

Remuneration to the arbitration manager is an indirect expense. Therefore, if an organization calculates income tax using the accrual method, the amount of remuneration is fully attributed to the expenses of the current month (subclause 1, clause 1, article 318 of the Tax Code of the Russian Federation). When using the cash method, take it into account on the day of payment (clause 3 of Article 273 of the Tax Code of the Russian Federation).

An example of payment of remuneration to a temporary arbitration manager. The organization applies a general taxation system

In March, bankruptcy proceedings were initiated against Alfa CJSC. The organization is led by a temporary arbitration manager. The fixed remuneration of the arbitration manager is 30,000 rubles. per month. The reward is paid in cash from the cash register.

In March, Alpha’s accountant made the following accounting entries:

Debit 26 Credit 76 – 30,000 rub. – remuneration was accrued to the temporary arbitration manager;

Debit 76 Credit 50 – 30,000 rub. – remuneration was paid to the temporary arbitration manager.

When calculating income tax for March, the accountant included 30,000 rubles in other expenses.

Interest on the remuneration will be paid to the arbitration manager within 10 calendar days from the date of completion of the bankruptcy procedure.

– What do you think should be the amount of remuneration for the bankruptcy trustee?

– I am convinced that the exact amount of such remuneration cannot be established in law. I believe that the calculation should be made on the basis of a special government decree, which will make it possible to determine fair payments based on the presence of factors influencing the complexity and volume of work. Such factors should take into account the type and volume of production, the presence of economic activity at the stage of bankruptcy proceedings, the nature of production (for example, fulfilling a government order), the number of employees of the enterprise and other factors. For example, remuneration at a strategic enterprise should be higher due to the characteristics of the technology, the amount of production equipment and a large staff.

simplified tax system

Simplified organizations that pay a single tax on the difference between income and expenses cannot include remuneration to the arbitration manager as part of the costs that reduce the tax base. Expenses for external management of an organization are not included in the closed list of expenses (clause 1 of Article 346.16 of the Tax Code of the Russian Federation).

If an organization pays a single tax on income, then the payment of remuneration to the arbitration manager also does not affect the amount of tax. Expenses for the payment of remuneration cannot be excluded from the tax amount, and the organization does not charge insurance premiums for it (clause 2 of Article 346.32 of the Tax Code of the Russian Federation).