PARTIES
Claimant – Evgeny Talyzin, former shareholder of TruckService 36; respondent – TruckService 36; third party – Irina Khromova, heir of the deceased shareholder of the company – Nina Khailova.
AMOUNT OF CLAIM
About RUR 47.8 million (market value of 20% shares in TruckService).
REPRESENTATIVES
For Talyzin – Justina, for TruckService 36 – Egorov, Puginsky, Afanasyev & Partners and others, for Khromova – EPAM.
BACKGROUND
In 2011 Talyzin withdrew from the company and requested payment of the market value of this 20% share – RUR 47.8 million (he owned 15% as from the date of the company’s formation in 1999, and obtained 5% from Khailova not long before her death). The company refused to pay stating that Talyzin’s share has not been paid up since 1999 (the price was paid for by the company). Former shareholder brought the issue to court.
FIRST ROUND COURT RULINGS
Claim rejected in the light of the fact that Talyzin failed to produce evidence of payment for the share. Khailova too had not paid for her 5% in the company which later on passed on to Talyzin. Khailova’s daughter, Khromova, wanted to join the dispute as a third party and claimed her interest to the 5% share, but that was rejected since she did not ask to be included in the shareholders of TruckService 36.
SECOND ROUND COURT RULINGS
Share price to be paid in full. Courts took the opinion of the court of cassation into account, and applied provisions of the Ruling by Presidium of Supreme Arbitrazh Court dated 26.02.2013 №12614/12. According to the above, if a company fails to timely determine the amount of its share capital basing on the amount of shares actually paid up, status of a shareholder who failed to prove payment for his/her share cannot be questioned.
RULING BY THE SUPREME COURT WHICH REFERRED THE CASE TO THIRD ROUND RETRIAL
In what relates to uncontested 15% share owned by Talyzin the courts took a formal approach, despite the fact that he could have lost the receipt since 1999, 12 years have passed since then. The courts should have examined the question of whether Talyzin participated in the company’s management and how the accountants kept an allegedly unpaid share on file. Supreme Court also said to joint Khromova in the case – she alleged that her mother did not transfer the share before her death and that her signature in the minutes was forget by Talyzin.
LAWYER'S COMMENTS
Where a shareholder seeks to contest decisions of a general meeting, get a distribution of profits and payment of the actual value of his/her share upon withdrawal from the company – in response, other shareholders often contest the status of such shareholder as such. And where in the very beginning he/she failed to timely pay for the share, he/she did not become one of the founders. In such cases it usually suffices for the respondent to question the mere fact of payment for the share in order to make the claimant responsible for proving timely payment.
Presidium of Supreme Arbitrazh Court in its ruling of 26 February 2013 №12614/12 stated that when contesting status of shareholders it is necessary to consider whether the company itself performed its duty to distribute the share having understood that it would not be paid up by respective shareholder (Article 24 of the Federal Law on Limited Liability Companies). Where a company fails to perform such obligation, there are no grounds to question the status of shareholder, even where proof of payment for the share is lacking. In the second round of Talyzin’s case the courts referred to this line of reasoning when granting his claim.
However, Supreme Court also noted that even if the company failed to distribute the unpaid share the case was not 100% won by the shareholder. The court rejected such a formal approach and advised lower courts to examine the circumstances of payments and future of the share: how it was recorder in the company's documents, could the company alienate it. The fact of payment, in turn, may be proved not only by receipt (which may be lost as time passes) but also with other paperwork, including accounting documents of the company, actions on the part of other founders (judging by whether they treated Talyzin as an actual shareholder).