HSBC Bank received an account from the distant past for operations with the Hermitage fund William Browder - once a major investor in the shares of Russian companies and the initiator of the sanctions list of Magnitsky. According to the fund's debts to creditors, the bank must pay 1.8 billion rubles, the Kalmykia Arbitration Court decided in August.
By 2004, Hermitage was the largest foreign owner of Russian shares with assets worth $ 4 billion, Browder said earlier. He managed HSBC, the court wrote, Browder, in the interests of the fund, bought up assets through registered companies in Kalmykia, including the "Far Steppe" (it owned 37.5 million shares of Gazprom). In 2004, the republic's Ministry of Internal Affairs instituted criminal proceedings, accusing Browder of illegal purchase of shares, evasion of taxes and the deliberate bankruptcy of companies. For non-payment of more than 522 million rubles. Taxes Browder in 2013 was sentenced in absentia by a Moscow court for nine years.
The Far Steppe itself was bankrupt, but the tax authorities could not get money from it to the budget: the shares were sold, and the proceeds for them were 2.8 billion rubles. - withdrawn to Cyprus, including through HSBC, follows from the materials of the court. The arbitration manager could not find any property or money to pay off debts, and in 2007 the case was closed.
But 10 years later it resumed: the Ministry of Internal Affairs found out that the arbitration manager Alexander Dovzhenko was not going to seek the assets of the "Far Steppe". A criminal case was opened against him, and Kirill Nogotkov, who replaced him in 2016, resumed his search for assets. The High Court of London confirmed his right to request in England and Wales all financial documents on the case and call witnesses to court. Nogotkov's attention was attracted by two companies that are part of the HSBC structure: his subsidiary bank in Russia and the HSBC Management registered in Guernsey. They should pay for the debts of the "Far Steppe", the court decided.
History of Magnitsky
In the mid-90's. Kalmyk companies, subject to certain conditions, paid to the budget instead of 35% of the profit tax 11%, and Hermitage structures - only 5.5%, as they hired people with disabilities. In 2008, a lawyer who consulted the fund, Sergei Magnitsky, was arrested. According to investigators, he participated in the accounting and tax reporting of Kalmyk companies. A year later, Magnitsky died in a siço, and representatives of Hermitage Capital accused Russian police and tax officials of having a lawyer tortured in prison, as he disclosed a fraudulent scheme of tax refunds for $ 230 million. In 2013, Browder secured the adoption in the US of a law on the imposition of sanctions Against Russian officials suspected of involvement in human rights abuses and allegedly implicated in Magnitsky's death.
All the money of the "Far Steppe" was placed in the Russian "daughter" of HSBC, which controlled the company and independently disposed of money, Nogotkov pointed out in court. For the years 2004-2005. The bank raised almost 1.8 billion rubles. Without signatures or seals of the company's executive body, although even then its debt to the tax exceeded 1 billion rubles., Insisted Nogotkov. The bank also claimed in court that it did not control either the "Far Steppe" or its money, and documents that could describe its role in those operations, for example, paper orders, were not preserved. Yes, and bring the bank to justice after so many years after the bankruptcy case is over. Twelve years have passed, the HSBC representative points out, the case concerns a client, whose service was terminated as early as 2005. The bank has already filed an appeal against the court's decision. Nogotkov learned about the disputed operations only in 2016, when he received the necessary documents - from this moment the limitation period begins, the court decided.
The court can create a dangerous precedent, warns KPMG partner Anton Zykov: until now, international companies have considered minimal the risks of their involvement in subsidiary liability in Russia. The manager was able not only to prosecute the foreign company, which in itself is a precedent, but also to resume the process many years after its completion, arbitration trustee Evgeny Semchenko agrees. There is a risk that the case against the manager may become a reason for reviewing all of his past bankruptcies, Zykov fears: creditors will look for reasons to initiate such criminal cases.
The decision is unlikely to form a judicial practice, hopes Semchenko: the cases of bringing managers to criminal liability for intentional bankruptcy are rare, and the case is too loud for such a practice to become mass. A person close to one of the parties to the conflict does not agree with him. The court's decision is based on the mechanisms that are already laid down in the law, he warns: the beneficiaries of schemes should be responsible for debts. Debt collection on subsidiary liability is one of the methods to combat abuses, the federal official supports.
All attempts to contact Nogotkov failed. The representative of Browder did not respond to the request of Vedomosti, and the Federal Tax Service refused to comment on the court's decisions.