Ghost voters: what happens to a share in a limited company owned by a liquidated entity? Case study, case №А40-186993/2015

6 august 2018

Key matter in dispute: the law does not answer the question concerning the legal future of a share in a company whose owner was struck out of the state register as an inactive entity. Shall such a share be count when determining quorum at general meetings?

BACKGROUND

CEO of TLK Dispatcher OOO and owner of 25% share - Igor Yankelevich - contested a special resolution rendered by the general meeting by which another person was appointed for his position – Yury Kalouzhskikh. Irina Agarkova voted ‘in favor’ (25%), while Yard company (50%) did not participate in the meeting of 2015 due to the fact that in 2014 it was struck out of the state register as an inactive company. Yankelevich decided that 50% quorum was not present, and applied to a court.

RULINGS BY COURTS OF THREE LEVELS

Courts did not find breaches and rejected the claim. Their view was that undistributed 50% share previously owned by Yard passed on to TLK Dispatcher OOO.

RULING BY SUPREME COURT

Since Yard does not act, its votes shall not be count when determining the required 50% quorum. Only Agarkova (25%) voted at the meeting which means that no quorum was in place.

OUTCOME

TLK Dispatcher was liquidated and proceedings were closed.

COMMENT BY S&K VERTICAL

The issue on which Supreme Court opined is rather topical considering that tax authorities are more than active in the recent years in what relates to striking out inactive companies from the state register. As Supreme Court stated, votes belonging to an excluded shareholder shall not be count for the purposes of determining quorum at general meetings. The court referred to norms which govern acquisition of own shares by the company. Basing on this logic, one may conclude that such a lost share shall transfer to the company with all the consequences: obligation on the company to re-distribute it or cancel it.

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