Remuneration of the temporary manager in the supervision procedure

Appointment of a temporary manager at the observation stage

The mechanism for appointing a temporary administrator is not defined in detail by law, which is why controversial situations often arise. Thus, it must begin its work simultaneously with the start of the observation procedure. But it is not entirely clear who should apply for his appointment: at this stage, not all creditors are aware of the beginning of the bankruptcy procedure, and the debtor is prohibited from indicating the candidacy of the manager.

Article 59 of the bankruptcy legislation provides for the following options for appointing a temporary manager:

• from among the candidates/SROs proposed by the creditors of the legal entity;
• from candidates registered with the court as managers, in the absence of proposals.

Since all creditors are not yet aware of the start of the insolvency procedure, any creditor, even those with small claims, can file a petition. As a result, the temporary manager often begins to act in the interests of the creditor who applied for his appointment. This in practice leads to abuse.

Please note: The observation procedure can last from three to five months. Accordingly, this is exactly the duration of work of this arbitration manager. It is therefore very important to appoint a manager as quickly as possible.

The following requirements apply to the candidacy of a temporary manager:

1. no criminal record;
2. non-participation in the management of the debtor company;
3. non-bias in favor of the debtor or creditors.

The temporary manager begins to perform his duties until:

• appointment of a temporary/administrative manager;
• declaring the debtor bankrupt and moving to the stage of bankruptcy proceedings;
• a court decision approving a settlement agreement between creditors and the debtor;
• the arbitration decision to refuse to declare the debtor bankrupt.

Responsibilities of the temporary manager

One of the main responsibilities is that the temporary manager must take measures to ensure the safety of the debtor’s property, since he literally replaces the director of the insolvent enterprise.

First of all, he analyzes the financial condition of the debtor, namely:

• identifies the causes of bankruptcy;
• determines the degree of liquidity of property;
• if external management is introduced, analyzes the prospects and period for restoring solvency;
• assesses the market value of the business;
• offers a system of measures that can help the debtor.

The next step is for the interim manager to identify whether there are signs of fictitious and deliberate bankruptcy, which include:

• destroyed or corrected financial documents;
• concealment of property;
• failure to collect receivables;
• obviously unprofitable trades;
• non-payments to creditors when funds are actually available;
• inability to find the location of counterparties who own the debtor’s property.

Moreover, the company’s management bodies are prohibited from opposing the official; at his request, they must provide the necessary documentation and comply with the restrictions established by law or court. Otherwise, the temporary manager has the right to enforce the court decision. If the management of an organization hides documents under any pretext (loss, theft, fire), the manager petitions the court to demand copies of documents from other enterprises.

The temporary manager is obliged to establish a register of the debtor's creditors; the latter must present the amounts of their claims within 1 month. The debtor may submit his objections to the register of unspecified claims in writing within a week.

When the arbitration court decides to begin the monitoring procedure, the administrator sends a notice to creditors to notify them that bankruptcy proceedings have been filed. He sets a date and convenes the first meeting of creditors, which must take place 10 days before the arbitration court hearing in the case of declaring the organization bankrupt. The issues within the competence of the assembly are listed in Article 65 of the Law.

At the end of the observation, temporary officials report to the arbitration court on the work done, provide information about the financial condition of the debtor, and prepare proposals for the possible restoration of the debtor’s solvency.

Remuneration for the bankruptcy trustee

The fixed remuneration amount is RUB 30,000. per month (paragraph 6, clause 3, article 20.6 of the Bankruptcy Law).

The amount of interest on remuneration is set in the following amounts (clause 13 of article 20.6 of the Bankruptcy Law):

• 7% of the amount of satisfied claims of creditors included in the register of creditors’ claims, if more than 75% of the claims of creditors included in the register of creditors’ claims are satisfied;
• 6% of the amount of satisfied claims of creditors included in the register of creditors' claims, if more than 50% of the claims of creditors included in the register of creditors' claims are satisfied;
• 4.5% of the amount of satisfied claims of creditors included in the register of creditors' claims, in case of satisfaction of 25% or more percent of the claims of creditors included in the register of creditors' claims;
• 3% of the amount of satisfied claims of creditors included in the register of creditors' claims, in case of satisfaction of less than 25% of the claims of creditors included in the register of creditors' claims.

Remuneration for the financial manager

The fixed remuneration amount is RUB 25,000. one-time fee for carrying out the procedure applied in a bankruptcy case (paragraph 7, paragraph 3, article 20.6 of the Bankruptcy Law).

The amount of interest on remuneration in the event that a citizen fulfills a plan for restructuring his debts approved by the arbitration court is 7% of the amount of satisfied creditor claims.

The amount of interest on the remuneration of the financial manager in the event of the introduction of a procedure for the sale of a citizen’s property is 7% of the amount of proceeds from the sale of the citizen’s property and funds received as a result of the collection of receivables, as well as as a result of the application of the consequences of invalid transactions. This interest is paid to the financial manager after completion of settlements with creditors (Clause 17, Article 20.6 of the Bankruptcy Law).

How to receive a temporary manager's remuneration

I'm asking for advice. And that's what I advise. Serve it up! And that's what I advise.

Serve it up! Great, convinced, thank you! You can file for observation for now.

To schedule a review. After appointing a new CG, submit the CG for the period of performance of duties.

Sent from my iPhone using Tapatalk Arbitration Manager.

Ural federal district. 8-912-202-202-6 is a good topic title: I’ll post my question here. VU's remuneration is at the expense of the debtor's property. the debtor wants to sell part of his property to settle payments with the VU.

The 5% barrier is not violated. Wu - I don't mind. Is it legal to sell property to the debtor under supervision for upcoming settlements with the VU? surveillance is underway.

Rights of a temporary arbitration manager

The list of rights of a temporary manager includes:

1. Submit to the court demands for recognition of transactions concluded by a legal entity as invalid, fictitious or void and their cancellation. We are talking about contracts concluded in violation of the requirements of 127-FZ. For example, those concluded with interdependent persons and on non-market conditions. Essentially, their goal is to deliberately worsen the financial situation of the debtor and withdraw assets.
2. Coordinate the conclusion of certain transactions with the management of the bankrupt company. Agreements that require approval include transactions for the disposal of real estate, property with a price of more than 10% of the book value of all assets of the debtor legal entity, transfer of property into trust management; obtaining new loans and borrowings; on obtaining bank and government guarantees; attracting guarantors; assignment agreements.
3. If the debtor enters into deliberately unprofitable transactions and management fails to take the necessary measures to restore the balance of payments, the temporary manager has the right to petition for the removal of the company's management from business.
4. Request any information from the managers of a legal entity, including information that constitutes a trade secret. For example, information about property rights and obligations, etc. If management refuses to provide such documents, the manager can forcefully demand them in court. The observer also has the right to request the information he needs from the debtor’s counterparties when destroying primary documentation at the debtor enterprise.
5. Appeal against unlawful claims of creditors.
6. Take additional measures to ensure the safety of property.

Rights and obligations of the temporary manager

A special figure exercising powers in the bankruptcy process in relation to a legal entity is a temporary manager.

A temporary manager may be removed by an arbitration court from performing the duties of a temporary manager:

1. in connection with the arbitration court's satisfaction of a complaint from a person participating in a bankruptcy case against the temporary manager's failure to perform or improper performance of his duties, if this violated the rights or legitimate interests of the applicant, and also entailed or could entail losses for the debtor or his creditors;
2. if circumstances are identified that prevented the person from being approved as a temporary manager, including if such circumstances arose after the person was approved as a temporary manager;
3. in other cases provided for by federal law.

The temporary manager has the right:

1. submit to the arbitration court on its own behalf demands for the invalidation of transactions and decisions, as well as demands for the application of the consequences of the invalidity of void transactions concluded or executed by the debtor in violation of the requirements of the Bankruptcy Law;
2. raise objections to creditors' claims;
3. take part in court hearings of the arbitration court to verify the validity of the debtor’s objections to the creditors’ claims;
4. apply to the arbitration court with a request to take additional measures to ensure the safety of the debtor’s property;
5. apply to the arbitration court with a petition to remove the debtor’s manager from office;
6. receive any information and documents relating to the debtor’s activities;
7. exercise other powers established by the Bankruptcy Law.

The debtor's management bodies are obliged to provide the temporary manager, upon his request, with any information relating to the debtor's activities. A temporary manager is an executive body of a legal entity, performing its duties on a non-permanent basis. He manages the activities of the organization during a certain period.

The temporary manager is obliged:

1. take measures to ensure the safety of the debtor’s property;
2. analyze the financial condition of the debtor;
3. identify the debtor's creditors;
4. maintain a register of creditors' claims;
5. notify creditors of the introduction of surveillance;
6. convene and hold the first meeting of creditors.

At the end of the observation, the temporary manager is obliged to provide the arbitration court with a report on his activities, information about the financial condition of the debtor and proposals on the possibility or impossibility of restoring the debtor’s solvency. The temporary manager is obliged to send a notice of the introduction of supervision for publication. The temporary manager is obliged to notify all creditors of the debtor identified by him about the arbitration court's ruling on the introduction of supervision.

Responsibilities of the Observation Stage Manager

The duties of a temporary manager arise from the peculiarities of the observational stage of bankruptcy of an enterprise. At this stage of observation, the company's management remains in place and continues to perform its official duties, but under the supervision of a professional manager. At the same time, certain restrictive measures are imposed on directors. Thus, they are prohibited from reorganizing the company, creating branches and representative offices.

The key goals of this observational stage, which determine the range of responsibilities of the manager, are:

1. Organize the first creditors' meeting, which will resolve the most important tasks of the case on recognizing the financial insolvency of the debtor. The meeting must be held at least 10 days before the first court hearing in the case of declaring the insolvency of the enterprise.
2. Compile a register of creditor claims in relation to a potential bankrupt. Consideration of the validity of complaints from the debtor about the illegality of including claims in the register.
3. Analyze and evaluate the financial assets of a legal entity.
4. Find the best ways to value assets.

In addition to these basic goals, the range of additional responsibilities of a temporary manager can include:

• determining the reasons for the impossibility of fulfilling one’s obligations;
• identifying the level of liquidity of the company’s property and assets;
• forecasting the return of the normal balance of payments when rehabilitation procedures are introduced at the enterprise: external management or recovery;
• assessing the market value of the enterprise as a complex;
• development of measures to restore solvency.

The observer should also analyze whether the company has signs of a fictitious bankruptcy. Indirect evidence of this fact is distorted financial statements, their absence; concealment of information about company-owned property; failure by a legal entity to take measures to collect receivables or assignment of rights to claim them on obviously unfavorable terms; concluding contracts on non-market terms; the presence of dubious companies and shell companies among counterparties; ignoring the demands of creditors, despite the possibility of repaying debt obligations.

Information The temporary manager is also obliged to monitor the work of the managers of the bankrupt enterprise. If management interferes with the normal performance of duties by the manager, then he must report the situation to the court and demand the temporary removal of management. Such a petition can be filed when management conceals documents, enters into transactions without the consent of the supervisor, etc.

When identifying signs of fictitious/deliberate bankruptcy, the observer assesses the possibility of bringing managers to subsidiary liability.

Manager's responsibilities

The main task of the temporary manager is to preserve the assets of the debtor company. He is also required to determine:

• Is it possible to repay debts?
• How liquid is the debtor’s property;
• will it be possible to restore solvency if external management is introduced;
• what is the market value of the debtor company.

At the observation stage, the new manager draws up an action plan to return the debtor to solvency and at the same time tries to identify the “traces” of a fictitious bankruptcy. For example:

• accounting records are lost;
• accounts receivable are not controlled;
• debt obligations are not fulfilled despite the fact that the company has the necessary finances;
• the company's management entered into obviously unprofitable contracts;
• there is no information about counterparties who use the debtor’s property.

At the same time, the head of the debtor company must not create obstacles for the temporary manager and must present the original documents upon request. If these originals are lost, the manager has the right to request copies of them from counterparties.

Another duty of the temporary manager is to compile a list of lenders and record their demands (in this case, the debtor has the right to challenge the creditors’ claims; he is given 1 week to do this). 10 days before the first meeting in the bankruptcy case, the manager is obliged to notify creditors of the start of the bankruptcy procedure and hold the first meeting for them.

All financial activities of the debtor company must be under the strict control of the temporary manager. And the head of the debtor company is obliged not only to notify him of the decision to enter into a particular transaction, but also to ask permission. If the observer seems that this step will only worsen the financial situation of the debtor, he has the right to prohibit signing the agreement.

If a deal is concluded behind his back, he has the right to petition the court to declare the deal invalid. In addition, he is given the authority to exclude from managing the company those people who, in his opinion, are not performing their official duties well.

Responsibility of a temporary manager in bankruptcy proceedings

The responsibility of the temporary manager for failure to perform/improper performance of his professional duties may be expressed in his removal. This procedure is carried out at the initiative of the participants in the bankruptcy case. After the relevant determination is made (even if it is appealed), the manager is not subject to reinstatement.

The legislation also provides for other liability measures that may be applied to the manager:

1. His exclusion from the SRO, which is designed to monitor the professional level of its members.
2. Application of liability measures in the form of disqualification with publication of the corresponding mark in the Federal Register.
3. Compensation for losses caused to the debtor and creditors.
4. Additional measures of property liability.
5. Criminal and administrative liability for causing damage on a large scale.

Temporary manager in enterprise insolvency proceedings

The mechanism for appointing a temporary administrator is not defined in detail by law, which is why controversial situations often arise. Thus, it must begin its work simultaneously with the start of the observation procedure. But it is not entirely clear who should apply for his appointment: at this stage, not all creditors are aware of the beginning of the bankruptcy procedure, and the debtor is prohibited from indicating the candidacy of the manager. The observer should also analyze whether the company has signs of a fictitious bankruptcy.

Indirect evidence of this fact is distorted financial statements, their absence; concealment of information about company-owned property; failure by a legal entity to take measures to collect receivables or assignment of rights to claim them on obviously unfavorable terms; concluding contracts on non-market terms; the presence of dubious companies and shell companies among counterparties; ignoring the demands of creditors, despite the possibility of repaying debt obligations.

1. His exclusion from the SRO, which is designed to monitor the professional level of its members.
2. Application of liability measures in the form of disqualification with publication of the corresponding mark in the Federal Register.
3. Compensation for losses caused to the debtor and creditors.
4. Additional measures of property liability.
5. Criminal and administrative liability for causing damage on a large scale.

• determining the reasons for the impossibility of fulfilling one’s obligations;
• identifying the level of liquidity of the company’s property and assets;
• forecasting the return of the normal balance of payments when rehabilitation procedures are introduced at the enterprise: external management or recovery;
• assessing the market value of the enterprise as a complex;
• development of measures to restore solvency.

The duties of a temporary manager arise from the peculiarities of the observational stage of bankruptcy of an enterprise. At this stage of observation, the company's management remains in place and continues to perform its official duties, but under the supervision of a professional manager. At the same time, certain restrictive measures are imposed on directors.

Thus, they are prohibited from reorganizing the company, creating branches and representative offices.

1. Analysis of financial statements for the last three years.
2. Analysis of enterprise transactions completed over the past three years, taking into account the market conditions in which they were concluded.
3. Inventory and valuation of legal entity assets.
4. Analysis of the circle of counterparties of a legal entity, search among them for unreliable and fly-by-night companies, offshore companies.
5. Analysis of the legality of creditors' claims received at this stage.

Manager's action plan in the observation procedure

After the temporary manager starts work, he needs to develop a list of activities that he plans to implement within the time allotted to him. Typically they are listed with a time frame for their implementation. The plan may include the following tasks:

1. Analysis of financial statements for the last three years.
2. Analysis of enterprise transactions completed over the past three years, taking into account the market conditions in which they were concluded.
3. Inventory and valuation of legal entity assets.
4. Analysis of the circle of counterparties of a legal entity, search among them for unreliable and fly-by-night companies, offshore companies.
5. Analysis of the legality of creditors' claims received at this stage.

Also in his final report, the interim manager develops a brief action plan for the future, based on the results obtained during the analysis.

Interim manager's remuneration

Based on the results of the observation stage of bankruptcy of a legal entity, the temporary manager has the right to receive remuneration for his work. It consists of the salary fixed by law, as well as accrued interest. Payments of remuneration are made from the debtor's funds and are made out of turn (before paying off creditor claims).

Information The salary of an arbitration manager is prescribed in 127-FZ on bankruptcy. Today it is set at 30 thousand rubles. monthly. The fixed part of the remuneration may be increased by a court decision at the request of creditors or other participants in the process. But such a decision can be appealed.

If the temporary manager resigns early, payments stop. When calculating the percentage of the manager's remuneration, it is calculated based on the book value of the debtor's assets and is:

Rights of the temporary manager

The person appointed by the court for supervision is directly involved in the case of declaring the organization bankrupt. It has the right to submit to the arbitration court on its own behalf a demand to recognize transactions as invalid and to apply the consequences of the invalidity of void transactions that were concluded or executed by the debtor in violation of the requirements of Federal Law No. 127. Therefore, before concluding certain transactions, the head of an insolvent enterprise informs the temporary manager in writing about his intentions and is obliged to obtain written consent from the official. The register of such transactions includes operations:

• on the disposal of real estate;
• at the disposal of other property, the book value of which exceeds 10% of the book value of the debtor’s assets;
• on transfer of property into trust management;
• transactions for issuing and receiving loans;
• for issuing guarantees and warranties;
• transactions related to the assignment of claims and transfer of debt.

Based on paragraph 1 of Article 60 of the Law “On Bankruptcy”, a temporary manager may petition the arbitration court in order to take additional measures to ensure the safety of the debtor’s property, as well as prohibit, without his consent, transactions that are not included in paragraph 2 of Article 58 of the Federal Law “On Insolvency”. ” and transfer securities, currency values ​​and other property for storage to third parties, including the cancellation of such measures.

Part 8, paragraph 3 of Article 58 of Federal Law No. 127 gives the temporary manager the right to authorize participation in unions, associations, financial and industrial groups, holdings and other associations of legal entities that lead to legal consequences.

The functions of a temporary bankruptcy manager include monitoring the activities of the debtor’s manager. Therefore, if a manager enters into unprofitable transactions or opposes the manager in restoring the organization’s solvency, the appointed manager has the right to file a petition with the arbitration court to remove the manager from managing the company.

The next right that the temporary manager has is to receive any information and documents on the debtor’s activities, including confidential and commercial secret information (clause 2 of Article 60 of the Law).

Article 22 of the Law assigns remuneration to the temporary manager.

Legal basis

If we talk about calculating the amount that must be paid to the arbitration manager for participation in a certain bankruptcy case, then its payment is regulated by the provisions of Article 20.6 of the specified federal regulatory act. In accordance with the provisions of this article, all parts of the remuneration that must be paid to the insolvency practitioner for the implementation of his activities are calculated.

Part 3 of this article talks about the components of remuneration, namely how the fixed amount and interest rate should be calculated.

Part 3.1, put into effect by Federal Law No. 266-FZ of July 29, 2020, regulates the procedure for paying interest to an insolvency administrator if his actions in the bankruptcy procedure resulted in the satisfaction of creditors’ claims. In addition, this part talks about how the percentage of the remuneration to the insolvency administrator should be paid.

Part 10 talks about how to calculate the amount of interest remuneration for an interim manager.

Part 11 of this article discusses the procedure for calculating the percentage of remuneration to the administrative manager.

Part 12 is devoted to similar calculations that are carried out for an external manager.

Part 13 examines the algorithm for calculating the percentage of remuneration that is paid to the bankruptcy trustee.

In addition, this article also provides detailed coverage of what should be taken as the basis for calculating the percentage of remuneration for various types of managers during bankruptcy proceedings.

Also within the framework of Article 20.6, the process of establishing the amount of remuneration is considered, as well as cases when the payment of remuneration may not be carried out for the arbitration manager.

Rights and obligations

During the observation stage, the temporary manager has the rights and powers that are determined by the provisions of Federal Law No. 127.

Rights:

1. Send to the court documents from the debtor company confirming that it was deliberately brought to bankruptcy. For example, contracts that do not meet market conditions, or those concluded with interdependent counterparties. Such documents are sent to the arbitration court along with an application to declare them invalid and with a request to cancel them.
2. Coordination with the debtor company of transactions concluded during the bankruptcy procedure. For example, transactions with real estate, as well as property whose value is more than 10% of the company’s total assets, as well as the transfer of property rights into trust management to another legal entity.
3. Demand any information from the bankrupt organization, even that which amounts to a trade secret. If the directorate of the debtor company refuses to produce such documents, the manager has the right to demand them by force by going to court.
4. Take actions to ensure the safety of the assets of the debtor company.
5. Demand documents from creditors if they were destroyed from the debtor company.
6. Apply for an appeal against claims of creditors that are unlawful.

In accordance with Federal Law No. 127, the powers of the arbitration manager at the observation stage include:

1. Take action to organize a congress of creditors, where the most basic tasks of resolving settlement issues will be resolved. Creditors must meet at least 10 working days before the first meeting of the arbitration court.
2. Create a register of creditor claims. When compiling the register, the bankrupt’s justified complaints about the inclusion of unlawful claims are taken into account.
3. Conduct an analysis and assessment of all assets of the bankrupt organization. Determine the level of liquidity of assets.
4. Make a forecast for the return of financial stability and the possibility of introducing financial and health-improving actions into the enterprise (stage of external management).
5. Determine the reasons for the debtor’s inability to fulfill his obligations.
6. Conduct a valuation of the company as a complex.

When the temporary manager performs his immediate duties, the company's management must be at their workplaces and perform official duties, but under the control of the manager. At the same time, management is limited in its actions. For example, they are prohibited from creating new branches or reorganizing.

If the director of a bankrupt company interferes with the activities of the temporary manager, then the latter notifies the court about this circumstance and demands the temporary removal of the organization’s management. If a fact of deliberate bankruptcy is discovered, the manager makes recommendations on bringing management to subsidiary liability. The decision on issues of financial insolvency, as well as on holding directors liable, is made by the arbitration court.

Similar articles

• Participants in the bankruptcy process: their rights and obligations
• Competition manager for bankruptcy of legal entities
• Publication on the introduction of the observation procedure
• Change of bankruptcy trustee in bankruptcy proceedings
• Rules for holding a meeting of creditors by an arbitration manager

What is the arbitration manager's remuneration paid for?

Payment of remuneration to the arbitration manager occurs for the fulfillment of those duties that were assigned to him by decision of the arbitration court when opening a bankruptcy case. Determination of the amount that will be paid to the insolvency practitioner is based on the responsibilities that are assigned to him in each specific case, namely:

• for analyzing the debtor’s activities in all existing areas in order to determine those types that were justified and aimed at preventing a state of bankruptcy, as well as those that led to such a state;
• for the protection of the property of a debtor organization or an independent individual, including for the purpose of preserving such property to fully satisfy the claims of creditors;
• for creating a list of those creditors to whom it is necessary to repay all existing debts;
• for reporting on completed transactions and providing generated reports to creditors, including indicating the amounts received as a result of transactions, which will subsequently need to be used to pay off existing debts;
• for actions aimed at attracting additional persons and managers who will help to fully fulfill the duties assigned to the arbitration manager;
• for identifying signs of fictitious bankruptcy, as well as other facts of illegal activities of the debtor himself or his officials (if any) and reporting such facts to the authorized state bodies for subsequent proceedings.

The arbitration court can also determine those cases when the payment of remuneration to the arbitration manager will be made, with the exception of those listed above. In general, such payments are made on the basis of the full performance by the bankruptcy manager of all the duties assigned to him, which most often leads to a full settlement with the bankruptcy manager at the end of the entire bankruptcy procedure or a certain stage of it, or if the manager is removed from the case he is conducting.

Accounting for expenses associated with the bankruptcy procedure of a trade organization

Bibliographic description:

Poplaukhina, T. D. Accounting for expenses associated with the bankruptcy procedure of a trade organization / T. D. Poplaukhina, I. V. Bagaev. — Text: direct // Economic science and practice: materials of the V International. scientific conf. (Chita, April 2020). — Chita: Young Scientist Publishing House, 2020. — pp. 58-63. — URL: https://moluch.ru/conf/econ/archive/221/12123/ (access date: 09.09.2020).


In conditions of high uncertainty in the external environment, when the global financial crisis, changes in legislation, increased taxation and other factors can lead to negative consequences, the likelihood of crisis situations increases for many legal entities. The modern theory of economic crises considers them, on the one hand, as an objectively inevitable process associated with the duration of the product life cycle and the life cycle of the enterprise, on the other hand, as a process that stimulates the improvement of technology and production management. Crises in an enterprise can be surmountable, or they can lead to bankruptcy of the company and subsequent liquidation.

In accordance with paragraph 2 of paragraph 2 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”, insolvency (bankruptcy) is the inability of the debtor recognized by the arbitration court to fully satisfy the claims of creditors for monetary obligations, for the payment of severance pay and (or) on remuneration of persons working or who worked under an employment contract, and (or) fulfill the obligation to make mandatory payments.

Insolvency (bankruptcy) cases are considered by the Arbitration Court at the location of the debtor. According to the Federal Law “On Insolvency (Bankruptcy),” a debtor can be recognized as a citizen of the Russian Federation, including an individual entrepreneur, or a legal entity. The debtor, bankruptcy creditor, authorized bodies, as well as an employee or former employee of the debtor who have claims for payment of severance pay and (or) wages have the right to apply to an arbitration court to declare a debtor bankrupt. Creditors have the right to submit an application to declare the debtor bankrupt only from the date of entry into force of the court decision to collect the debtor's funds.

The bankruptcy procedure is an integral part of a market economy, and in all countries with developed or developing market economies there is an institution of bankruptcy. At the same time, the practice of conducting bankruptcy proceedings shows that conducting a bankruptcy procedure at all its stages entails considerable costs, which are covered by the organization of the bankrupt, from the proceeds from the sale of his property, and accordingly, the likelihood of satisfying the claims of creditors from the funds is reduced. debtor.

Both the debtor and the debtor's creditor have the right to apply to the Arbitration Court to declare the debtor bankrupt. However, the presence of one of the signs of bankruptcy, the application of a creditor or debtor to the Arbitration Court for bankruptcy, and even the initiation of a bankruptcy case does not in itself mean that the debtor has been declared bankrupt. As the first stage, the Arbitration Court considering the bankruptcy case introduces a monitoring procedure in relation to the debtor and approves the arbitration manager, in this procedure he is a temporary manager. The insolvency practitioner is a key figure in a bankruptcy case. It is this that the Arbitration Court vests with the powers of a supervisory, controlling body over the debtor, and without whose knowledge the debtor’s management does not have the right to carry out any significant business transactions. The arbitration manager for conducting the bankruptcy procedure receives a remuneration from 15,000 rubles to 45,000 rubles per month, depending on the procedure introduced. In addition, the arbitration manager has the right to attract specialists to support his activities - an accountant, lawyer, appraiser, and so on. All these expenses are compensated from the debtor's funds. In accordance with Article 134 of the Federal Law “On Insolvency (Bankruptcy)”, current payments are reimbursed out of turn - expenses that arose after the start of the bankruptcy procedure, that is, the debtor’s creditors are moved to the end of the queue.

In observation, the temporary manager acts as an expert who, during the observation period - usually three or four months - must collect all the necessary information about the debtor, its financial condition, its liabilities, assets, evaluate the actions of the debtor's management, analyze transactions over the past three years, prior to filing an application for bankruptcy, make a report and submit it to creditors and the Arbitration Court.

A feature of insolvency (bankruptcy) procedures is the need for the debtor to incur a number of mandatory expenses not related to the main activity: legal expenses, expenses for publishing information about the introduction of bankruptcy procedures, expenses for maintaining a register of creditors’ claims, remuneration of an arbitration manager and other expenses. All these expenses are covered from the debtor’s property and are reimbursed out of turn. If the debtor’s property is not enough to pay these expenses, then the unpaid portion is covered by the funds of the applicant, in this case the bankruptcy creditor.

Below is an example of reflecting expenses associated with the bankruptcy procedure of a trade organization.

The arbitration court introduced a monitoring procedure in connection with the application of the creditor-supplier to the court in connection with the outstanding debt. Based on the results of the Arbitration Court's consideration of the validity of the applicant's claim, bankruptcy proceedings were initiated for the debtor. A monitoring procedure was introduced in relation to the trading organization, and an arbitration manager was appointed as a temporary manager. The insolvency administrator has completed training in the insolvency administrator training program, meets the requirements established by current legislation, and is also a member of the self-regulatory organization of insolvency administrators. By decision of the Arbitration Court, the debtor organization was declared insolvent (bankrupt) and in respect of which a bankruptcy procedure was introduced. The main responsibilities of the bankruptcy trustee are as follows: take charge of the debtor’s property and conduct an inventory of it; engage an independent appraiser to evaluate the debtor’s property; take measures to ensure the safety of the debtor’s property; maintain a register of creditors' claims; perform other duties.

Thus, when introducing a monitoring procedure, an approximate analysis is made of the sufficiency of property to pay off the register of creditors. Since the debtor organization continues to operate, there is a need to separately take into account the costs associated with the bankruptcy procedure. Expenses related to bankruptcy procedures in a trade organization are taken into account during the month by debiting account 44 “Sale expenses”, subaccount 10 “Costs related to bankruptcy” and account 91.2 “Other expenses”. At the end of the month, subaccount 10 “Costs related to bankruptcy” of account 44 “Sale expenses” is closed to account 91.2 “Other expenses”.

Legal costs consist of state fees and costs associated with the consideration of bankruptcy cases of the debtor by the arbitration court. The bankruptcy creditor filed an application with the arbitration court to declare the trade organization bankrupt. After the introduction of bankruptcy proceedings, the bankruptcy creditor sent a demand for reimbursement of expenses for paying the state duty in the amount of 2,000 rubles, which was satisfied by the trade organization by transferring funds to the bank account of the bankruptcy creditor. Entries were made in the accounting of the trade organization (Table 1).

Table 1

Reflection in accounting for legal expenses

According to paragraph 1 of Article 28 of Law No. 127-FZ on insolvency (bankruptcy), information on issues related to bankruptcy is in the official publication determined by the Government of the Russian Federation. Today this is the Kommersant newspaper. Information on the introduction of supervision, declaring the debtor bankrupt and the opening of bankruptcy proceedings, and the termination of bankruptcy proceedings are subject to mandatory publication. The costs of a trade organization for publishing an advertisement in the Kommersant newspaper about the introduction of a surveillance procedure amounted to 21,240 rubles, including VAT of 3,240 rubles. The following entries will be made in accounting (Table 2).

table 2

Reflection in accounting of expenses associated with the publication of information about the bankruptcy procedure

The remuneration of the arbitration manager for each month of the exercise of his powers is established in the amount determined by Article 20.6 of Law No. 127-FZ on insolvency (bankruptcy), approved by the arbitration court. Let’s assume that by decision of the arbitration court the remuneration of the bankruptcy trustee is set at 30,000 rubles per month of performance of duties. During the bankruptcy procedure, remuneration in the amount of 240,000 rubles was accrued. The remuneration was paid by transfer from the organization's current account to the personal account of the arbitration manager. Since the arbitration manager manages the affairs of the debtor enterprise, having the authority of its director, the costs of paying his remuneration should be taken into account in accounting as management costs. In a trading organization, this is the “Management Expenses” subaccount of account 44 “Sales Expenses”. The following entry was made in the accounting records:

Debit 44 “Sale expenses” subaccount 10 “Management expenses” Credit 76 “Settlements with other debtors and creditors” - 240,000 rubles - remuneration to the external manager was accrued.

Debit 76 “Settlements with other debtors and creditors” Credit 50 “Cash” - 240,000 rubles - remuneration was paid to the external manager.

There is no need to charge insurance premiums on the arbitration manager’s remuneration and withhold personal income tax from him. An arbitration manager, according to current legislation, is a subject of professional activity, engaged in private practice and is obliged to independently make mandatory payments.

In addition to the arbitration manager, qualified specialists (experts, lawyers, etc.) are involved in carrying out judicial actions, and in this regard, expenses arise for paying them remuneration. Let’s assume that the arbitration manager has hired an accountant, a lawyer, and rented premises. The monthly payment to the involved organizations amounted to 50,000 rubles. During the period of the bankruptcy procedure, expenses for hired specialists amounted to 400,000 rubles, these amounts are not subject to VAT.

Measures to restore the debtor's solvency include the sale of the debtor's property. The initial sale price is set on the basis of the market value determined in accordance with the report of an independent appraiser hired by an external manager and acting on the basis of a contract. Payment for services for conducting an independent assessment of the value of property is carried out at the expense of the debtor’s property. The valuation of the debtor's movable property, the book value of which as of the last reporting date is less than 100 thousand rubles, can be carried out without the involvement of an independent appraiser. Expenses for the services of an independent appraiser are recognized as other expenses associated with production and sales and can be taken into account when determining the tax base for income tax.

To evaluate the organization as a property complex, the bankruptcy trustee concludes an agreement. Let the amount of remuneration in accordance with the contract amount to 94,400 rubles, including VAT of 14,400 rubles. The following entries were made in the accounting records (Table 3).

Table 3

Reflection in accounting of costs for attracted persons

The costs of paying dismissed employees severance pay and compensation for unused vacation are another cost item associated with the bankruptcy procedure of an organization. Dismissal of personnel of a liquidated organization is carried out on the basis of an order from its head. In accordance with Article 180 of the Labor Code of the Russian Federation, the employer is obliged to warn the employee about the upcoming dismissal in connection with liquidation personally and against receipt at least two months before the dismissal. Information about the upcoming dismissal is transmitted to the state employment service.

In addition to wages, the dismissed employee is paid severance pay in the amount of average monthly earnings, and the dismissed employee retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (less severance pay). The resigning employee is issued a certificate of income of an individual in Form No. 2-NDFL.

If a dismissed employee, due to the liquidation of the debtor organization, did not use his allotted annual leave, then he is paid monetary compensation. Severance pay is not subject to personal income tax and insurance contributions. Personal income tax is withheld from the amount of monetary compensation for unused vacation (Article 217 of the Tax Code of the Russian Federation), but insurance premiums are not charged.

Let’s assume that an employee of a trade organization, salesperson I.A. Vlasova, resigned by order of her manager on June 24, 2020, without using her annual leave. The average daily earnings of an employee was 750 rubles. The amount of compensation for unused vacation is 750 rubles. x 28 cal. days = 21,000 rub. The tax base, taking into account the standard tax deduction for a child 7 years old, is 21,000–1,400 = 19,600 rubles. Personal income tax 19,600 rubles. x 13% = 2548 rub. The following entries were made in the accounting records (Table 4):

Table 4

Reflection in accounting of expenses for payment of compensation to dismissed employees for unused vacation

Thus, the costs associated with the bankruptcy procedure, namely: legal costs, costs of publishing information about the introduction of bankruptcy procedures, costs of maintaining a register of creditors’ claims, remuneration of the arbitration manager and other costs are covered by the bankrupt organization, reimbursed out of turn, which , accordingly, reduces the likelihood of satisfying creditors' claims at the expense of the debtor's funds. Moreover, if the debtor’s property is not enough to pay these expenses, then the unpaid portion is covered by the funds of the applicant, in this case the bankruptcy creditor.

Literature:

1. Konkov V.I. Accounting and analysis of bankruptcies: textbook. - Arkhangelsk: ASTU, 2007. - 222 p.
2. Kurchenko Yu. L., Chebykina D. O. Legal principles of bankruptcy procedures: Textbook. - Tomsk: TU department, TUSUR, 2012. - 105 p.

Key terms
(automatically generated)
: arbitration court, expense, trade organization, manager, bankruptcy creditor, bankruptcy, accounting, bankruptcy procedure, publication of an announcement, ruble.

Calculation of a fixed amount

As mentioned above, the fixed amount is calculated based on the provisions of Part 3 of Article 20.6 of Federal Law No. 127-FZ “On Insolvency (Bankruptcy)”. In accordance with the provisions of this part, the following remuneration amounts are assigned to various types of arbitration managers:

• the temporary manager is entitled to a monthly remuneration of thirty thousand rubles;
• the administrative manager is paid fifteen thousand rubles monthly;
• the external manager is required to pay forty-five thousand rubles monthly;
• the bankruptcy trustee receives thirty thousand rubles every month;
• The financial manager receives twenty-five thousand rubles as a remuneration for each bankruptcy procedure carried out, which is applied in a certain case. This payment is a one-time payment.

In the event that an arbitration manager, regardless of type (with the exception of a financial manager), works in a case for an incomplete month, or he was removed from the case before the expiration of a full month, the amount of remuneration will be calculated based on the calendar days actually worked in the month and formed on the basis of proportional calculations.

The fixed remuneration amount is RUB 30,000. per month (paragraph 3, clause 3, article 20.6 of the Bankruptcy Law).

The amount of interest on remuneration does not exceed 60,000 rubles. and at the book value of the debtor’s assets is:

• up to 250,000 rub. — 4% of the book value of the debtor’s assets;
• from 250,000 rub. up to 1,000,000 rub. — 10,000 rub. and 2% of the amount in excess of the book value of the debtor’s assets over RUB 250,000;
• from 1,000,000 rub. up to 3,000,000 rub. — 25,000 rub. and 1% of the amount in excess of the book value of the debtor’s assets over 1,000,000 rubles;
• more than 3,000,000 rub. — 45,000 rub. and one-half percent of the amount in excess of the book value of the debtor’s assets over RUB 3,000,000. (Clause 10, Article 20.6 of the Bankruptcy Law).

What is the priority of the arbitration manager?

If the previously appointed manager was removed from work, or the case moved to a new level, and the manager was replaced by a court decision, then the previous manager should apply to the court with a request for payment of a material award.

As mentioned earlier, after completing work on a specific case, payment of remuneration to the manager’s account should be received within ten days. It is worth mentioning that, in the conditions of the proceedings itself, the arbitration manager has special privileges. After all, payments are received into his account regardless of the priority assigned to creditors.

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).

The Supreme Court explained how to calculate interest on the remuneration of a temporary manager

The rule on payment of interest on remuneration within 10 days from the date of completion of the procedure in a bankruptcy case regulates only the procedure for paying remuneration and the period for its implementation. But it does not determine the moment when the right to remuneration arises.

As part of the bankruptcy case, the arbitration manager went to court with a demand to recover from the debtor interest on the remuneration of the temporary manager in the amount of 475 thousand rubles. The manager calculated the amount of interest on remuneration according to the rules of clause 10 of Art. 20.6 of the Bankruptcy Law as amended, which was in force on the date of introduction of the monitoring procedure against the debtor.

Three authorities partially satisfied the application and collected 60 thousand rubles. The courts have concluded that the right to receive interest on the temporary manager's remuneration arises only after the completion of the supervision procedure. Accordingly, to determine the amount of interest, it is necessary to be guided by the provisions of the Bankruptcy Law as amended, which was in force on the date of expiration of the 10-day period from the end of the observation procedure. That is, to determine the amount of interest on the remuneration of the temporary manager, clause 10 of Art. 20.6 of the Bankruptcy Law as amended by Law No. 391-FZ, which establishes the maximum amount of interest on the temporary manager’s remuneration in the amount of 60 thousand rubles.

The Supreme Court of the Russian Federation did not agree with the conclusions of the lower authorities. The court concluded that the legal relationship between the debtor and the temporary manager arose from the moment the supervision was introduced and the manager was approved. It is from this date that the manager acquires the right to receive a fixed part of the remuneration and interest on the remuneration. At the same time, according to the Supreme Court, the rule on payment of interest on remuneration within 10 days from the date of completion of the procedure, which is applied in a bankruptcy case, regulates only the procedure for paying remuneration and the period for its implementation. This rule does not determine the moment when the right to such remuneration arises.

The court noted that the manager was approved before Law No. 391-FZ came into force. In this connection, the version of the Bankruptcy Law that was in force on the date of introduction of supervision is applied. The Supreme Court overturned the judicial acts of the lower authorities and sent the case for a new trial.

Document : determination of the RF Armed Forces dated September 4, 2017 No. 301-ES17-4624

Source

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.

Payment of personal income tax and insurance premiums

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

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.

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).

Combination of OSNO and UTII

If the arbitration manager controls an organization that, along with the general taxation system, pays UTII, his remuneration must be distributed. Write off the accrued amount as expenses in proportion to income received from various types of activities (clause 9 of Article 274, clause 7 of Article 346.26 of the Tax Code of the Russian Federation).

An example of the distribution of remuneration for a temporary arbitration manager. The organization applies a general taxation system and pays UTII

LLC "Torgovaya" sells goods wholesale and retail. The organization pays general taxes on wholesale trade. Retail trade has been transferred to UTII. Hermes accrues income tax on a monthly basis. The accounting policy of the organization states that general business expenses are distributed in proportion to income for each month of the reporting (tax) period.

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

The organization's accountant distributed the amount of remuneration of the temporary arbitration manager for January as follows.

The amount of income received by Hermes in January from various types of activities is: – from wholesale trade – 2,400,000 rubles; – for retail trade – 850,000 rubles.

The organization had no other income.

The share of income from wholesale trade in the amount of income from all types of activities was: – RUB 2,400,000. : (RUB 2,400,000 + RUB 850,000) = 0.738.

The amount of remuneration that relates to the organization’s activities under the general taxation system was: – 30,000 rubles. × 0.738 = 22,140 rub.

The accountant took this amount into account when calculating income tax for January.

The amount of remuneration that relates to the activities of an organization subject to UTII is equal to: 30,000 rubles. – 22,140 rub. = 7860 rub.

In January, Hermes' accountant made the following entries:

Debit 44 subaccount “General business expenses for wholesale trade” Credit 76 – 22,140 rubles. – remuneration was accrued to the temporary arbitration manager related to the organization’s activities under the general taxation system;

Debit 44 subaccount “General business expenses for retail trade” Credit 76 – 7860 rub. – remuneration was accrued to the temporary arbitration manager related to activities subject to UTII.

Temporary manager's expenses

In addition to remuneration, the temporary manager can count on compensation for expenses incurred during the supervision procedure. Moreover, such expenditure transactions must be economically justified and documented. Compensation is due to the manager if he was not removed from the business for improper performance of his duties.

The expenses incurred by the arbitration manager during the bankruptcy procedure are recovered from the debtor's funds. These may include costs for publishing information in the Federal Register, paying for the services of hired specialists, legal costs, organizing creditor meetings, etc.

Legislative payments to the arbitration manager

Payment for the services of the arbitration manager must be accrued regularly. More specifically, monthly, while he is listed as a conditional (or auxiliary) employee of the supposed bankrupt company. Work with him proceeds according to the following scheme: the beginning of joint cooperation, the adoption of a court ruling, the end of joint cooperation.

But the end of cooperation can be marked not only by the completion of production. The arbitration manager may be released or simply removed from his activities. Yes, this happens too. The manager also ceases to operate if the parties have signed a peace agreement or if the auction proceedings have been completed.

Let's say a representative of the arbitration court began to deal with the assigned bankruptcy case. If the beginning and end of his work activity do not occur at the beginning and end of the month, then the amount of payment for an incomplete calendar month is calculated on the basis of the proportional ratio of days in the months worked.

If, during the bankruptcy proceedings, a completely different or even several other arbitration managers were brought in, the remuneration of workers should also be calculated proportionally for each individual day, separately for each of the mentioned employees. If it has been proven (and such cases have happened) that one of the managers made a much greater contribution to the matter in question, then his pay can be fairly increased.

Manager's report under observation

After completing the observation stage of insolvency, the temporary manager must provide reporting documentation to the court and the creditors' meeting. It should contain information about the results of work and information about the current financial situation of the debtor. In addition, the reporting must contain indications of the measures taken by the debtor to repay the debt.

Information The manager’s tasks include developing a set of measures to restore the solvency of a legal entity, which are embodied in reporting.

The report reflects the following information:

• comprehensive financial analysis of the enterprise, assessment of investment and economic areas of work;
• measures taken to ensure the safety of property and identify creditors;
• petitions and statements presented to the court during bankruptcy proceedings;
• conclusion on identifying facts of deliberate/fictitious bankruptcy (if any);
• current list of creditor claims;
• minutes of the first and subsequent creditor meetings;
• justification for the possibility or impossibility of restoring the balance of payments;
• recommendations on the introduction of one or another bankruptcy procedure;
• other information about the performance of their duties.

Appeal against the actions of the temporary manager

Unlawful actions of a temporary manager or improper performance of his professional duties may be appealed in court. The complaint can be filed by the management of the enterprise, creditors or the Tax Inspectorate. If the complaint is satisfied, the manager may be subject to one of the penalties or removed.

Important Not all actions of the observer can be appealed, but only those that violated the legal rights and interests of the plaintiffs in the bankruptcy case, provoked losses for creditors or worsened the financial position of the legal entity.

Thus, observation can be considered as a preliminary stage of the bankruptcy procedure. At this stage, the manager must form an objective picture of the financial situation at the enterprise and protect property from illegal withdrawal.

The role of a temporary manager in the bankruptcy process

It is legally determined that a temporary bankruptcy trustee can only be appointed by the court. When vested with the rights to control the implementation of the financial plan for the rehabilitation of the enterprise, the management of the debtor company is deprived of absolute independence in making key economic decisions. The director of the institution is obliged to coordinate his actions with the manager when intending to enter into a transaction for the purchase and sale of property, issue a new loan or assign the rights of claim.

Once a temporary manager has been approved, Law No. 127-FZ “On Bankruptcy” instructs him to begin his activities by entering into federal databases information about the upcoming procedure for declaring an individual enterprise insolvent. In the notification, the manager displays the following set of information:

• identification of the debtor indicating his name and address;
• designation of the judicial authority that made the decision to begin the observation stage, providing details of the open bankruptcy case;
• temporary manager in a bankruptcy case - a brief information statement about the identity of this official, including his full name and address information, which can be used by interested parties to send correspondence;
• the date on which the hearing of a case on recognition of the financial insolvency of an organization or other business entity is scheduled within the framework of a court hearing.