Anastasia Samusenko has commented for RBC Pro on reorganisations recognised by the court as a sham transaction

RBC Pro has studied how the courts practice of recognising sham and pretended transactions is shaping up. For example, the media drew attention to a dispute concerning a reorganisation of aLLC by heirs. Due to a “technical error” of a notary, only two out of four heirs were entered into the Unified State Register of Legal Entities. Before the error was discovered, they managed to hold an extraordinary meeting of the company’s participants and unanimously voted in favour of separating the company into a separate company to which all the real estate of the company was transferred. However, the Moscow Commercial Court ruled that the reorganisation was a sham transaction to cover up the withdrawal of assets. The court explained that the heirs were aware that they could claim only 50% of the shares, hence they had taken unfair advantage of the presence of inaccurate information in the Unified State Register of Legal Entities, carried out the disputed reorganisation in the absence of economic prerequisites and provoked a corporate conflict.

“The judgement rendered by the court seems quite consistent, taking into account the defendants’ purely formal arguments in the form of references to the Unified State Register of Legal Entities, when it is obvious that the actual share of participation is unambiguously defined in the certificate of inheritance rights, or to the expiry of the limitation period for challenging the decisions of the general meeting, when the law unambiguously states that a decision of the general meeting adopted without the required majority of votes is invalid regardless of its challenge in court,” Anastasia Samusenko, Senior Associate at Maxima Legal, commented on the dispute specially for RBC Pro.

To read the full article (in Russian), please, see RBC Pro website >>>