Non-core types of work. Replacement of debtor's assets

Interview with the head of the non-financial assets management department, deputy general director of IFC METROPOL Irek Salimov

I. Salimov graduated from the Faculty of Geography of Moscow State University. M. V. Lomonosov. He was engaged in scientific activities. Worked in management positions in companies in the real sector of the economy. In 1995 he joined IFC METROPOL. Currently he heads the non-financial assets department of this company.

Management of non-core assets is one of the most pressing problems being solved today by domestic investment and financial companies.
What assets are non-core? What are the basic principles for managing them? And is it possible to turn non-core assets into core ones?

BUG: Irek Khamzievich, what are the goals of managing non-core assets?

I.S.: First of all, let's determine which assets are considered non-core.
Imagine that you inherited a car with a trailer from your grandfather. After repairing your car, you decide to become a taxi driver. This is called a car use strategy. But what to do with the trailer? You need to figure out how to get the maximum benefit from it. As a taxi driver, you don't need a trailer because it doesn't fit into the strategy of turning a car into a taxi. All that remains is to repair and sell this “accessory” cheaply or rent it out. You can leave it at your dacha and use it as a warehouse for other unnecessary things. In the end, if you don’t have enough time or energy to deal with the trailer, since you have already become a taxi driver, you can scrap it, that is, liquidate it. This trailer is a non-core asset.
The profile of the asset is determined depending on the owner’s understanding of the goals and objectives of his activities. If the management of this asset does not fit into the business strategy, it becomes non-core. And the goal of managing non-core assets, like any other, is the same - obtaining maximum profit.

BUG: Is there a classification of non-core assets and actions with them?

I.S.: I would highlight two categories of non-core assets. The choice of management strategy plays a decisive role in this classification.
The first category includes assets that represent real ballast for the company. Actions with such assets, as a rule, come down to their restructuring in the following directions: effective integration into the main activity, i.e. transfer to the category of specialized ones; transfer for lease or management; sale; liquidation.
Such assets are in most cases allocated during the reorganization of the main business. These are excess production capacities, social infrastructure facilities, real estate, service divisions, etc. Approximately the same problems have to be solved when the owner suddenly changes the strategy of the main business.
The second category of assets differs from the first in that they are initially acquired by the owners - in most cases, investment companies and credit institutions - as non-core assets. We are talking about complete business units that enable their owner to start a new business. Such non-core assets are initially considered as part of a project and are managed as part of the overall strategy for its implementation.
As an example, I can cite our non-core assets in the mining industry and real estate. The main activity of IFC METROPOL is finance and portfolio investments. Therefore, assets acquired through direct investment existed for a long time as non-core assets. However, already now, on their basis, separate self-sufficient directions have emerged, and IFC METROPOL has turned into a group of companies of the same name. Currently, two structures have been created: “Metropol Development” and “Corporation “Metals of Eastern Siberia”, which manage these assets.
The diversity of non-core assets leaves no room for unifying the procedure for managing them: it depends on the tasks assigned to management.

BUG: What are the main management problems?

I.S.: The main disadvantage of managing non-core assets - if they really are non-core - is that you have to learn a lot all over again and, as is often the case, on the fly. That is why the involvement of third-party specialists and outsourcing is so widely practiced in the management of non-core assets.
In addition, there are problems of management control and managerial responsibility. To solve them, our company created a team of professional managers, which included people who had worked in the real sector of the economy for a long time.

BUG: What limitations and opportunities are typical for this type of activity?

I.S.: The main limitation is resources. Excessive diversification of assets can lead to the dispersion of resources, which makes it difficult to focus on core activities. A clear management strategy and a clear investment policy can avoid this.
But the possibilities are almost limitless: we have a big country, and there’s always something we can put our hands to.

BUG: Name the characteristics of non-core assets subject to restructuring.

I.S.: In practice, it is difficult to identify signs that necessarily indicate the need for liquidation or sale. As I already said, the spin-off of non-core assets often occurs when the main business is reorganized, technological regulations are changed, or a new strategy for using assets is approved. Restructuring is always based on the idea of ​​economic feasibility. If an asset consumes too many resources, generates losses, and does not fit into the overall production cycle; if we are talking about an internal expensive and low-quality product that can be replaced with a similar product from an external supplier, such an asset should be considered a non-core asset.

BUG: Please tell us more about the methods of restructuring non-core assets.

I.S.: The first is integration into the main production cycle. We are talking about departments that are actually necessary for production, where, due to poor management and control, an expensive and low-quality product was produced. If it is possible to reduce the cost and improve the quality of the product, it is better to return the asset to a unified business management system, since transferring assets vital for the main activity to lease or management is very risky.
The second is leasing. This method of restructuring, practiced mainly in the service and real estate trade sector, allows you to receive some rent from assets that are partially used for the needs of the main business and for this reason cannot be sold or liquidated. In addition, assets are leased, the sale of which is not economically justified due to low market value or prospects for use in the main production.
The third is the transfer of an asset for management in related or auxiliary industries (for example, the manufacture of components). This path is good when there is a competitive environment, an understanding of the prospects of the business, and ownership control over the asset, but there is no possibility of its effective use in a unified management system. In such cases, the asset is transferred to the management of motivated management, and the parent company has one less headache.
The fourth is selling. If an asset is completely out of the main business development strategy, has a relatively high market price and can be replaced, it is better to sell it and use the freed-up resources to develop the main production.
Fifth - liquidation. In most cases, we are talking about obsolete equipment that cannot be sold.

BUG: Perhaps there is a scheme for the allocation of non-core assets?

I.S.: You're right. When separating and restructuring non-core assets, we try to adhere to the following sequence of actions: assessment and analysis of the core business; development of a plan for its reorganization; allocation of non-core assets; their comprehensive analysis and assessment; choice of restructuring scheme.

BUG: What risks are exposed to the process of asset restructuring?

I.S.: The risks present at all stages of restructuring are based on an erroneous assessment of both the company’s core business and its non-core assets. Decisions on their allocation and transfer to management are made on the basis of subjective criteria: management and owners may have different understandings of the profile of assets. Therefore, it is very important to develop a unified assessment methodology.
So, firstly, there is a risk of breaking the technological chain of the main production. The reason is either incorrectly drawn up technological regulations or an incorrect assessment of the competitive environment. Switching to external supplies can significantly increase the cost of the main products or reduce their quality. But restoring the technological chain will cost much more.
Secondly, the prospects for the key activities of the parent company are sometimes incorrectly assessed. When expanding our core business, we often realize that sold or liquidated assets could now be needed, and their replacement is again expensive.
Thirdly, by singling out an asset as non-core, you risk losing it during restructuring - for example, if you transferred the asset to a new legal entity managed by incompetent or unscrupulous managers.

The bank's non-core assets do not correspond to the organization's target strategy and are a burden that requires funds for maintenance and does not generate income. It could be:

1. Real estate.
2. Transport.
3. Social facilities.
4. Goods.
5. Equipment, etc.

Most often, this is the collateral of debtors who took money and for some reason are not able to return it in full. This means that the debtor’s collateral, if the terms of the loan agreement are not met, is transferred to the balance sheet of the financial enterprise.

The collateralized property is either sold to cover the creditor's debts and compensate the bank's costs, or other options for paying off the debt are offered.

Management of non-core assets on the balance sheet

Every financial organization wants to remove non-core assets from its balance sheet that lie like dead weight if it sees no prospects for their use. For this purpose, implementation or restructuring is envisaged. On the Internet you often come across advertisements for the sale of one or another bank property. Most often, these are mortgaged apartments and cars of debtors, warehouses of enterprises that could not repay the loan, goods or equipment.

What to do with non-core assets

Non-core assets most often require funds for maintenance and do not generate profit. Financial organizations are trying to get rid of this ballast in the following way:

1. Sale.
2. Restructuring.

Any method of liquidating non-core assets requires careful analysis to determine which asset management option is preferable.

Sale of property

When an enterprise does not see prospects for the use of non-core assets, an analysis of the market and existing property is carried out. If analytical activities have shown the feasibility of implementation, documentation for sale is prepared. It is preferable if:

• there are potential buyers of the property;
• the property is in demand;
• assets are of high value;
• lack of connection between assets and the organization’s activities.

The implementation process is carried out through bidding (auction) or publication of the register on the company’s website.

Asset restructuring

Let's consider options for restructuring non-core assets:

1. Introduction into the main production of the enterprise.
2. Transfer to the municipality if these are public buildings.
3. Write-off. Most often it happens if the assets have outdated equipment or there is no buyer.
4. Rent or transfer to third parties for management. If the bank owns an apartment and its market value is low, a decision will be made to rent out the property and receive a monthly income rather than to sell it.

Restructuring is also impossible without analyzing market conditions.

Non-core assets of banks and their sale

The main activities of banks are deposits and provision of loans. One of the conditions for granting a loan is guarantees. Most often, they serve as collateral for the property of companies or individuals. People are mortgaging apartments and their cars to borrow money. If the borrower does not fulfill its obligations to repay the debts, then the collateral becomes the property of the bank. Subsequently, the collateral is sold to recoup expenses. Let's look at this process using the example of leading Russian banks.

VTB

​In the spring of 2016, VTB completed the merger of Bank of Moscow, which was absorbed not so long ago. He assumed all the liabilities of the institution, as well as its non-core assets. Now VTB is in the process of selling them in order to cover debts to clients of the acquired bank, which exceed half a billion rubles.

There are many objects, mostly real estate. There are 31 items in the register. Shares of the Kornet winery, whose debt exceeds 3 billion rubles, are also up for auction. There are potential buyers, but they consider the price too high. However, the starting price of many properties can be reduced by up to 70% of the market price. Sales are carried out through electronic trading on the website of the Unified Electronic Trading Platform; anyone can take part in them. To do this, you need to register in the system and obtain an electronic signature.

Some of the objects are sold through direct sale. This includes real estate, cars, equipment and machinery for business. Advertisements are posted directly on the VTB website. All specified property is also sold on credit from VTB, which can be calculated here on the website.

Sberbank

The register of non-core assets of Sberbank is always updated. Something is sold, something is again added to the bank’s balance sheet. Sales are carried out in an open or closed competitive form. Before accepting property as collateral, Sberbank checks its liquidity.

Sberbank sells its non-core assets in two ways: either through a statement of claim or by agreement with the borrower. Seizure of collateral property is not carried out immediately. Once payments are stopped, the borrower is given another 3 months before the case goes to trial.

Sometimes the bank offers the client restructuring. For example, they increase the loan term to reduce the monthly payment. If none of the methods suits the borrower, then the collateral will be sold with payment in cash or by transferring the debt to another individual.

The bank also gives the client the opportunity to sell the property himself in order to pay off debts.

The bank's website contains a register of real estate properties that are sold or leased. Part of the property is sold at auction. Detailed information about existing non-core assets available for purchase or lease can only be obtained from a bank employee.

Rosselkhozbank

Rosselkhozbank carries out its implementation according to the following principles:

1. Regular asset analysis.
2. Transparency and publicity of procedures.

All this is done to find potential clients. The bank's management annually approves a new plan for the sale of non-core assets. Data on the expected economic effect is collected and a matrix of possible risks is compiled with an assessment of the degree of criticality and factors.

Rosselkhozbank employees post all information and the register of assets on the bank’s official website.

From the site you can download the property database as a separate file, and also use the search system by selecting the region, area and type of property. However, so far the service is not working well, and the search is only for residential real estate. While the database of collateral contains more than 1,500 objects, including equipment and production complexes.

"Gazprombank"

The list of Gazprombank's non-core assets includes real estate, transport, securities, equipment and much more. The bank makes the sale in several ways:

1. The client independently sells his property and pays off the loan debt.
2. Sales are carried out through an auction.

Sales are carried out through our own electronic trading platform https://etpgpb.ru/realestate/.

You can apply for participation directly on the website; the first time you apply, you must go through the registration procedure and obtain an electronic signature.

"Alfa Bank"

The sale of Alfa-Bank's non-core assets occurs according to a standard scheme and does not differ from similar procedures of other banks, both pre-trial and by court decision.

If the borrower does not independently sell the collateral real estate, Alfa-Bank organizes an auction. The official website contains a list of those objects that are subject to sale. You can download a file with a real estate database or contact us by phone or e-mail. Compared to the previously described banks, the sales volume here is very modest - just over 70 facilities throughout Russia.

Advantages and disadvantages of purchasing bank collateral

When buying an apartment, a citizen wants to receive real estate below market value, and the bank wants to sell the collateral without loss. Typically, properties are put up for sale at a reduced price, because the bank is interested in quickly selling the collateral and receiving real cash. This is a clear advantage. But housing often has an encumbrance in the form of citizens registered in this living space, this is a definite disadvantage.

To avoid risks, experts advise carefully checking the documentation and not making rash decisions.

Non-core assets, in essence, are bank funds that should actively participate in activities, but are in limbo for one reason or another. They are actively being sold and other uses are being sought.

Non-core assets are not only available to credit institutions; see the video below for general principles of sales and practical examples.

The goal of any company is to make profit from its activities. But it often happens that the scope of a company’s activities changes, or new areas of activity appear, or the company can no longer maintain service divisions for some reason. This, in turn, entails the need to attract new assets and resolve the issue of the advisability of further maintaining those whose economic effect is minimal.

What are non-core assets?

Non-core assets are:

• which are not used in the main activity;
• the maintenance and repair of which require costs that significantly exceed the current market value of a similar object;
• which are located in geographic regions that are not strategically important for the company’s current activities;
• which constitute costs for unfinished construction, which the company no longer intends to complete;
• financial investments in shares or authorized capital of enterprises that are currently not related and are not important for the company’s activities, etc.

Considering that the maintenance of any property, and especially fixed assets, is associated with certain expenses (repairs, salaries of service personnel, property tax, etc.), if the asset is recognized as non-core, it is advisable to make a decision on the method of release from it.

How to get rid of a non-core asset

There are several options, the most common of which is the sale of non-core assets. This method will be effective only if:

• the property is insignificantly related to the main activity;
• maintenance costs exceed income or economic benefits from its use;
• the property is in demand on the market;
• The company has information about potential buyers for the property.

In accounting, sales are reflected and accounted for on the basis of PBU 6/01 by writing off the residual value of the object from accounting and reflecting proceeds from the sale as other income in an amount equal to the contractual value of the object. All this is formalized with the following entries:

• Dt 01-02 Kt 01-1 - reflects the original price of the sold object;
• Dt 02 Kt 01-02 - the amount of accrued depreciation on the sold object is written off;
• Dt 91 Kt 01-02 - the residual value of the sold property is taken into account in other expenses;
• Dt 62 Kt 91 - the contract price of the property sold is included in other income;
• Dt 91 Kt 68 - VAT is charged on the sale of property.

Another way to make money on a non-core asset is to invest it, for example, as a contribution to an enterprise that is of interest for business development.

For a property contribution, it can be valued at its book value (residual) value or at market value based on an assessment by an independent appraiser. The last option for investment is the most acceptable.

For example, the market price of a non-core asset according to the appraiser’s report was 450,000 rubles. Its residual price is 300,000 rubles. In accounting, the implementation of the deposit is reflected by the following entries:

• Dt 58 Kt 76,450,000 rub. — the financial investment is reflected in the market valuation;
• Dt 76 Kt 01,300,000 rub. — the fixed assets transferred as a financial investment are written off;
• Dt 19 Kt 68 RUB 54,000 — VAT has been restored from the residual value of the transferred fixed assets;
• Dt 76 Kt 91 96 000 rub. — reflects the financial result from investments (450-300-54);
• Dt 76 Kt 19 54,000 rub. — the restored VAT adjusts the calculations and is not included in the cost of the financial investment.

So, to decide whether a particular object is needed for the organization’s activities or not, many factors should be assessed. After all, a non-core business can potentially be involved, but in order to maintain and develop it, significant capital investments are needed. It is these necessary capital investments that need to be assessed in order to understand whether the company is ready to finance the development of a non-core asset.

The IMAC GROUP group of companies is united under the terms of an agreement and includes organizations that have all the permits required by the legislation of the Russian Federation to service mutual investment funds. The purpose of its activities, IMAC GROUP determines the formation of economic and other commercial benefits for its clients, as well as shareholders and employees, at the expense of its intellectual and material resources, as well as the overall development of the financial markets industry. Trademarks (service marks) of companies included in the IMAC GROUP are registered and protected by the legislation of the Russian Federation and international standards on intellectual property rights: their illegal use is prosecuted by law. Statements made on this site speak only as of the date made.

PERSONAL DATA PROTECTION POLICY

Disclaimer

By providing your personal information (name, address, telephone number and email address) on this site, you authorize us to use this information in accordance with the following terms of this Privacy Policy.

Heading

By linking your personal information (name, address, telephone number and email address) to this site, you authorize us to use this information in accordance with the following terms of this Privacy Policy.

After posting your personal data on this site, they can only be used for the purpose of transmitting information about the status of orders and their payment, sending messages or notifications related to the status of the order to your email address.

Personal data collected on the site will only be used for the purpose specified above and will not be transferred to third parties. We take reasonable measures to ensure the security of your personal data. All personal data is restricted to prevent unauthorized access, modification or use for unauthorized purposes.

If you do not agree with any of the terms of the Policy, please do not provide your personal information on this site.

After posting your personal data on this site, they can only be used for the purpose of transmitting information about the status of orders and their payment, sending messages or notifications related to the status of the order to your email address.

ABOUT SUBSCRIPTION

To gain access to the site’s analytical materials, we suggest getting to know each other better.

To do this, just fill out a short registration form.

Registration on our website allows you to:

• gain access to restricted publications on our website
• become subscribers of our monthly Digest about closed mutual funds
• receive other useful information about closed mutual funds and other instruments
• asset management
• keep abreast of IMAC GROUP events.

The information provided by you is protected by the IMAC GROUP Personal Data Protection Policy.

You can always unsubscribe and unregister by following the appropriate link in the messages sent to you or by sending us a corresponding notice at .

You can edit your registration data by logging in and following the link in the form of your name in the lower right of the site or by sending us a corresponding notification at .

Statements and Notices. Disclaimer

Corporate Statements

IMAC GROUP is a leading Russian expert and infrastructure service provider in the field of asset management and financial markets. At the same time, IMAC GROUP should be understood as a group of independent companies (each of which is a separate independent legal entity), united under the name IMAC GROUP under the terms of a partnership agreement for the purpose of mutual support in carrying out commercial activities in common segments of the economy aimed at providing professional services to Clients each of the companies included in the IMAC GROUP, and having as a common mission the joint development of the Russian financial market and the satisfaction of the interests of its participants through the common efforts of professional organizations operating in this segment of the Russian economy.

The companies included in the IMAC GROUP are not linked to each other by legal ties leading to the emergence of affiliation and dependence. When making their corporate, commercial and other decisions, companies are guided by the principle of independence, acting primarily in the interests of their Clients, Employees and Shareholders. The companies included in the IMAC GROUP provide services on their own behalf, do not act as agents of each other and the association as a whole, do not bind each other and the association as a whole with any obligation and are not responsible for the actions or inactions of any other company included in composition of IMAC GROUP.

General information about the companies included in the IMAC GROUP and links to their corporate websites are presented on the page www.. The website www.site (hereinafter also referred to as the Site) is also used as the corporate website of the Limited Liability Company "AIMAK Company" - a company registered in accordance with the laws of the Russian Federation (OGRN 1077746373462) and is the initiator of the creation of an association of companies under the IMAC GROUP brand.

Trademarks and logos

Logos (trademarks and service marks) of companies included in the IMAC GROUP are registered trademarks. Their use in cases where, in accordance with Russian and international legislation, the prior authorization of the copyright holder is required, is prohibited without the prior written consent of the relevant company included in the IMAC GROUP.

The names and logos of non-IMAC GROUP products and companies displayed on the Site may be the trademarks of their respective owners. IMAC GROUP companies, respecting the intellectual property of third parties, do not use these trademarks as a means of individualizing their own activities and do not produce goods (provide services, do not perform work) produced (provided, performed) by the owners of such trademarks. The placement of trademarks (service marks) of third parties on the Site is carried out solely for informational purposes (in particular for the purpose of informing about clients and partners of companies included in the IMAC GROUP) and does not mediate the promotion of IMAC GROUP services under the trademarks (service marks) of third parties persons

If, in the opinion of the owner of a trademark (service mark), the actions of IMAC GROUP (group companies) in any way harm his property, non-property and any other interests and rights, such owner, for the purpose of a speedy settlement, must contact support@site, or any other means of communication indicated in the Contacts section (www..

Information posted on the site

AIMAK Company LLC, IMAC, IMAC GROUP, 2003 - 2014.

The site provides users with information about the IMAC GROUP group of companies, as well as general information. All rights to the information posted on the Site are protected in accordance with Russian legislation, including copyright and related rights. Any unauthorized use of information posted on the Site may violate the law and the interests of third parties.

Reproduction of information posted on the Site (in particular by transferring information to another information resource open for access to third parties, or by providing a link in any form, including links in printed materials, on the Internet, including in social networks networks), subject to the following conditions: (1) use of such materials is personal and non-commercial; (2) all copyright, trademark and other similar information contained in the original (reproducible) information is preserved; (3) no changes are made to the original (reproducible) information; (4) the address of the permanent link of the source (reproducible) information or the address www.. Reproduction, distribution and other use of information posted on the Site may be subject to the direct prior written consent of IMAC GROUP, of which appropriate notification is made.

IMAC GROUP respects the exclusive rights of third parties to information and materials posted on the Site, the authors and sources of which are third parties. Such information and materials may not be modified, reproduced, published, used or distributed for public or commercial purposes without the express written permission of the owner of such materials. IMAC GROUP does not bear any risk or liability for the fact that users do not receive the specified permission.

The use of information posted on the Site when making responsible decisions (including, but not limited to, decisions in the implementation of commercial activities, as well as for non-commercial purposes and for personal interests) is carried out by the decision maker at his own peril and risk. When using the information, please be aware that the information is provided without warranty, express or implied, including as to its absolute accuracy, timeliness or completeness. The risk of negative consequences resulting from the use of recommendations, opinions and statements contained on the Site is fully borne by the user. IMAC GROUP is not responsible for any damages arising in any form in connection with the use of the Site, including the use of posted information, unless the liability or risks of the companies are determined by the relevant contract as accepted.

With regard to Internet sites accessible through links published on the pages of the Site that are not under the control of IMAC GROUP, IMAC GROUP is not responsible for the content of such Internet sites. Links to other Internet sites are included in the content of the Site only for the convenience of users and do not mean consent of IMAC GROUP and its officials with the content of these Internet sites.

IMAC GROUP reserves the right; change the information published on the Site at any time without prior notice; limit, suspend or terminate the operation of the Site and any parts or sections thereof; deny any user access to use the Site and/or any part or section thereof.

None of the provisions of the Site is or can be interpreted as a recommendation to legal entities or individuals regarding the disposal of property, or as an offer by any of the IMAC GROUP companies.

For all questions arising in connection with these statements and notifications, you can contact us for support and clarification at s upport@site

Notification

The English version of the site is under development.

English version under construction.

• Grounds for the emergence of ownership rights when replacing assets
• How many JSC can be created as part of the asset replacement procedure
• What happens to the right of pledge when the debtor replaces the assets

Replacement of the debtor's assets is one of the ways to restore his solvency provided for by bankruptcy legislation. The meaning of asset replacement is as follows: during external management, one or more open joint-stock companies are created on the basis of the debtor’s property. As a result, the debtor exchanges his assets for shares of the newly created joint-stock company, and the proceeds from their sale go to repay the debts remaining with the debtor founder. The main advantage of replacing assets is that adding property to the authorized capital is carried out much faster than selling it at auction, and eliminates the risk of selling property to dummies. This measure to restore the debtor's solvency may be included in the external management plan or submitted to a meeting of creditors during bankruptcy proceedings if there is a decision of the debtor's management body authorized to make decisions on the conclusion of relevant transactions by the debtor. Despite the seemingly fairly defined procedure for replacing the debtor’s assets proposed in the law, in practice many procedural issues remain not fully disclosed, and this in turn can result in a number of adverse legal consequences.

Replacement of the debtor's assets can only be carried out by creating a new company

Asset replacement is one of the provisions Federal Law of October 26, 2002 No. 127-FZ“On insolvency (bankruptcy)” (hereinafter referred to as Insolvency Law) measures to restore the debtor’s solvency, which is the creation of one or more open joint-stock companies on the basis of his property.

In the case of the creation of one JSC, property (including property rights) that is part of the enterprise and intended for carrying out entrepreneurial activities is contributed to its authorized capital, that is, not all of the debtor’s property is transferred to the joint-stock company, but only its assets (things and property rights) .

The meaning of asset substitution is that as a result, the debtor exchanges his assets for shares of the newly created joint-stock company, and the proceeds from their sale go to pay off the debts remaining with the debtor founder. Current legislation does not provide for the creation of a legal entity through reorganization in the form of replacement of the debtor's assets. Replacement of the debtor's assets is carried out by creating a new company ( Resolution of the Federal Antimonopoly Service of the North Caucasus District dated 05/07/2009 No. A32-13565/2008-16/254).

At the same time, this measure to restore the debtor’s solvency can be included in the external management plan on the basis of a decision of its management body, which is authorized, according to the constituent documents, to decide on the conclusion of relevant transactions of the debtor. In this case, the decision can be made by the sole executive body of the company, the board of directors (if the subject of the transaction is property whose value is from 25 to 50% of the book value of the company's assets), the general meeting of shareholders (if the subject of the transaction is property whose value is constitutes more than 50% of the book value of the company’s assets) ( Art. 79 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”).

Formation of authorized capital when replacing assets is a major transaction

Contribution of property to the authorized capital of one or more open joint-stock companies when replacing assets will be considered a major transaction for the debtor. Accordingly, such a decision can be made either by the board of directors or the general meeting of shareholders (depending on the value of the subject of the transaction). In case of non-compliance with this provision of the law, the transaction may be declared invalid in court.

It should be noted that, on the one hand, the very procedure for making a decision on the possibility of replacing assets by the company’s management body (especially if we are talking about a general meeting) is quite lengthy. On the other hand, in practice it is not possible to “force” the governing bodies to make a decision on replacement. As a rule, management bodies are reluctant to make such decisions, since when shares are sold at public auction, control over the debtor's property may be lost.

The basis for the emergence of ownership rights when replacing assets is a complex legal structure

After the debtor’s management body makes a decision, the external manager must hold a meeting of creditors to consider the inclusion of a decision on asset replacement in the external management plan. This decision is made by a majority vote of the total number of votes of bankruptcy creditors and authorized bodies present at the meeting (subject to the quorum conditions - Article 12 of the Insolvency Law).

Creditors cannot automatically become participants in an OJSC

When replacing the debtor's assets by creating an open joint-stock company on the basis of his property, creditors cannot automatically become shareholders of the newly created joint-stock company; in a newly created (or several) open joint stock company, the only shareholder is the debtor. The creation of joint stock companies when replacing the assets of the debtor together with third parties (co-founders) is not allowed in this case.

In this case, all creditors whose obligations are secured by the pledge of the debtor’s property () must vote “for” the decision to replace assets. The fact is that the replacement of the debtor's assets represents the disposal of his property; accordingly, as a general rule, the pledgor can dispose of the pledged item only with the consent of the pledgee (clause 2 of Article 346 of the Civil Code of the Russian Federation). The absence of a positive vote of the creditor, whose obligations are secured by the pledge, or its absence in the voting at all, makes it impossible to carry out the procedure for replacing assets, provided that such a creditor is available at the time of replacing assets. Thus, the rights of the secured creditor are not violated if the pledged property of this creditor was not included in the assets being replaced ( determination of the Supreme Arbitration Court of the Russian Federation dated April 26, 2012 No. VAS-5351/12).

At the same time, in a number of cases, courts note that the decision to replace the debtor’s assets with secured creditors must be made before including this measure in the external administrator’s plan ( Resolution of the Thirteenth Arbitration Court of Appeal dated October 13, 2011 in case No. A56-12169/2010), in some cases, courts allow such a decision to be made immediately at the time of the court hearing ( Resolution of the Federal Antimonopoly Service of the North Caucasus District dated November 14, 2011 in case No. A32-54783/2009).

Thus, the basis for the emergence of property rights when replacing the debtor’s assets is a complex legal structure, which includes a decision of a meeting of creditors to replace assets, the transfer of property to the authorized capital of an open joint-stock company under an act of acceptance and transfer, and state registration of the company as a legal entity. In addition, if the property is immovable - state registration of ownership in the Unified State Register of Rights to Real Estate and Transactions with It ( Resolution of the Federal Antimonopoly Service of the West Siberian District dated December 14, 2010 in case No. A03-2497/2010).

The external management plan may provide for the creation of several JSCs

At the meeting of creditors, it is also necessary to resolve the issue of the method of selling shares: as a general rule, the sale of shares of one or more OJSC created on the basis of the debtor’s property is carried out at open auction according to the rules of Art. 110 of the Insolvency Law, however, the external management plan may provide for the sale of shares on the organized securities market.

For an objective assessment of the property contributed to the authorized capital of joint-stock companies when replacing assets, the Insolvency Law requires that the amount of the authorized capital of such companies be determined by a decision of a meeting of creditors based on a report on the assessment of its market value. Consequently, before holding a meeting of creditors, at which a decision is supposed to be made on replacing assets, it is necessary to evaluate the debtor’s property, which must be carried out by an appraiser.

In the absence of an assessment of the market value of the property contributed to pay for the authorized capital of the created OJSC, it is impossible to make a decision on replacing the debtor’s assets, and therefore making a positive decision at a meeting on a controversial issue on the agenda violates the rights of the debtor’s creditors (resolution of the Nineteenth Arbitration Court of Appeal dated 10/18/2011 No. 19AP-2479/10).

The external management plan may provide for the creation of several JSCs. In this case, most likely, we are talking about the property of a multidisciplinary debtor, since, according to clause 3 of Art. 115 of the Insolvency Law, payment of the authorized capital of the created open joint-stock companies occurs with the debtor’s property intended for the implementation of certain types of activities. The composition and value of the property contributed to pay for the authorized capital of each such OJSC are determined in the external management plan. Accordingly, before holding a meeting of creditors to consider the issue of including a decision on asset replacement in the external management plan, it is necessary to determine the size of the authorized capital of each open joint-stock company being created.

When replacing assets, the employer's rights are transferred

When the debtor’s property is transferred to one (several) open joint-stock company, the rights and obligations of the employer are also transferred, that is, all employment contracts in force on the date of the decision to replace the debtor’s assets remain in force, while the rights and obligations of the employer are transferred to the newly created company ( Art. 115 Insolvency Law).

The right of pledge upon replacement of assets does not cease

Within the framework of the procedure for replacing the debtor's assets, the following problem is of interest: what happens to the right of pledge after a positive vote by the creditors for the decision to replace the assets. Does the pledge cease with the transfer of ownership to the newly created joint stock company or does it follow the property? This issue is important, since, on the one hand, the need to repay the obligations secured by the pledge affects the investment attractiveness of the newly created company, on the other hand, the presence of an encumbrance affects the determination of the value (valuation) of the shares of the newly created open joint-stock company.

Thus, in the event of a transfer of ownership of the pledged property, the right of pledge will remain (Article 353 of the Civil Code of the Russian Federation). The Insolvency Law directly states the situation when the right of pledge is terminated (when the collateral is sold at auction - Article 18.1). That is, it can be assumed that when replacing the debtor’s assets, the legislator did not provide for the termination of the right of pledge.

This position is indirectly confirmed by judicial practice. Thus, in a decision in one of the cases, the court indicated that the application of the rule on preserving the pledge when the right to the pledged property is transferred to another person is also permissible in relation to goods in circulation transferred as part of the debtor’s property in the procedure of replacing assets (Generalization of judicial practice in applying the legislation on pledge, approved by the resolution of the Presidium of the Eighteenth Arbitration Court of Appeal dated December 26, 2009 No. 1). However, it must be borne in mind that in the case at hand, the plaintiff was not one of the debtor's bankruptcy creditors who had the right to vote on the replacement of assets.

Bankruptcy creditors have priority in deciding on the formation of the bankruptcy estate

Replacement of assets during bankruptcy proceedings occurs mainly according to the rules provided for external management, with some exceptions.

So, according to paragraph 1 of Art. 141 of the Insolvency Law, in order to make a decision on the replacement of assets, a decision of the meeting of creditors is required. However, this provision must be applied in conjunction with Art. 126 of the Insolvency Law, which establishes the consequences of the introduction of bankruptcy proceedings. From the date the arbitration court makes a decision to declare the debtor bankrupt and open bankruptcy proceedings, the powers of the head of the debtor, other management bodies of the debtor and the owner of the debtor’s property are terminated, with the exception of the powers of the debtor’s management bodies to make decisions on concluding major transactions. Accordingly, the management body initially makes a decision to replace assets (as with external management), then this issue is considered at a meeting of creditors.

At the same time, the decision to replace assets during bankruptcy proceedings is also made by the meeting of creditors, provided that all creditors whose obligations are secured by a pledge of the debtor’s property voted for such a decision.

Thus, the Insolvency Law at the stage of bankruptcy proceedings gives bankruptcy creditors a priority right in deciding the issue of the procedure for forming the bankruptcy estate of the debtor, regardless of the opinion of the debtor’s management bodies or the interests of the property owner. This is the main difference between the replacement of assets at the stage of bankruptcy proceedings and a similar procedure during external management, within the framework of which the owner of the property is granted the appropriate powers provided for in paragraph 3 of Art. 94 of the Insolvency Law.

When substitution transactions are declared invalid at the request of government authorities

Case one: tax authorities demand that transactions to replace assets be recognized as void(Article 168, 170 of the Civil Code of the Russian Federation). This issue may be of interest to the tax authorities only in one case - in connection with the possibility of VAT restoration. In the case of the transfer of property and property rights as a contribution to the authorized capital of a joint stock company, VAT is not charged, but there is an obligation to restore VAT in the amount previously accepted for deduction, and in relation to fixed assets and intangible assets - in an amount proportional to the residual (balance sheet) value excluding revaluation ( subp. 1 clause 3 art. 170 Tax Code of the Russian Federation). Problems arise if: the original cost of the object was changed due to modernization, but the document itself was destroyed; there are no invoices for the acquisition of fixed assets; materials are transferred that are listed at average cost, etc. Thus, the main question arises with determining the amount of VAT to be recovered.

Case two: tax authorities require that transactions to replace assets be recognized as void due to failure to fulfill the obligation to register the issue of securities. Thus, the tax authorities went to court with a demand to recognize the transaction to replace assets as void, since the issue of securities of the created company was not carried out due to non-payment of state duties. However, the court found that the issuer did not have an objective opportunity to fulfill the requirements for registering ownership of the real estate transferred as payment for the shares due to the presence of a ban from the bailiff. In addition, by a court ruling, an interim measure was applied in the form of a ban on the company from carrying out actions related to the issue of ordinary shares. Failure by the debtor to fulfill the obligation to register the issue for valid reasons is not grounds for declaring a transaction to replace assets void ( Resolution of the Federal Antimonopoly Service of the Central District dated October 1, 2009 No. F10-4117/09).

Consequences of completing the asset replacement procedure

Option one: the proceeds from the sale of shares are not enough to pay off the claims of all creditors. The sale of shares of one (or several) OJSC created on the basis of the debtor's property must ensure the accumulation of funds to repay the claims of all creditors (). However, what to do if the claims of some creditors remain unpaid? It follows from the civil legal meaning of the institution of bankruptcy that the funds should not be enough to fully satisfy all the claims of creditors (clause 4 of article 61, article 65 of the Civil Code). Otherwise, it would not be entirely logical to introduce a bankruptcy procedure if the debtor can independently create a subsidiary, contribute property to the authorized capital and pay off the claims of creditors. Therefore, if there are insufficient funds to repay the claims of all creditors during the replacement of the debtor’s assets, the replacement of assets is carried out to the end, then proportional satisfaction of the creditors’ claims is made in accordance with Article 142 of the Insolvency Law. Such actions will be correct and based on the law, since “repayment of the claims of all creditors” is not equivalent to the concept of “repayment of all claims of creditors” (Resolution of the Nineteenth Arbitration Court of Appeal dated July 22, 2008 No. 19AP-2887/08).

Option two: the proceeds from the sale of shares are sufficient to repay the claims of all creditors. As a result, a legal entity remains without a property base, labor collective and debts, but this does not mean that it is in the process of liquidation (review of the Federal Antimonopoly Service of the Volga-Vyatka District “Practice of considering cases on disputes related to the registration of legal entities and individual entrepreneurs (clause 4.1.5 section IV of the work plan of the Federal Arbitration Court of the Volga-Vyatka District for the first half of 2006)").

Thus, replacement of assets does not always lead to restoration of the debtor's solvency, but provides an opportunity to preserve his business.