Mikhail
Khodorkovskiy, former Yukos head and current prisoner, achieved a huge victory in
Strasbourg. The biggest Russian oil company was convicted in tax and business fraud.
It
was liquidated leaving $ 9.2 billion of unsatisfied liabilities (§ 18).
Together with Platon Lebeder, former Yukos director, he was ordered to pay the
State all remaining tax liabilities of Yukos (§ 227), since they were de facto organisers and beneficiaries of
the tax evation scheme (§ 319). The Russian Courts held that there is a
subsidiary liability of managers if the corporate taxpayer had no assets (§
875). Russians considered that owners used the limited liability company as a
façade for fraudulent action, and therefore piercing of the corporate veil was
an appropriate solution for defending the rights of its creditors, including
the State (§ 877).
However
the Strasbourg judges considered that, as a matter of principle, the Russian
law did not provide for the recovery of unpaid company taxes from the managers
guilty of tax evasion (§ 875). Such a practice was not “adequately accessible
and sufficiently precise” (§ 876) or “clear” (§ 877).
If
unpaid taxes are claimed as “damages”, the ECtHR analyses national expressis verbis law, Article 1068 of
the Russian Civil Code must apply, which provides that damage caused by an
employee of the company while performing his official duty must be compensated
by that company (§ 879).
Article
56 of the Russian Civil Code previews personal liability of owners and managers
in cases when they caused insolvency of their company. The Strasbourg judges
replied that this Article was not applied in the Khodorkovskiy case, since (§
880):
1) The claim of the tax authorities was granted while the corporate
taxpayer still existed.
2) Article 56 provides subsidiary liability of owners and
managers, while Khodorkovskiy and Lebedev were ordered to recover the amounts
on the solidary basis with the company.
3) Article 56 was not mentioned in Russian judgments.
In
addition, in internal case I and K,
11/01/2001, the Russian Supreme Court interpreted the law as not allowing for
the shifting of liability for unpaid company taxes from the company to its
executives (§§ 449 & 882).
