During the next two months, the administrator developed an external administration plan which, according to the FSFRB’s Director T. Tre filova, was contrary to the interests of the State and society and did not meet any of the requirements of the Law on bankruptcy. The main criti cism concerning this plan was that it did not have as its goal the restora tion of the enterprise’s solvency as a whole, but instead envisaged, in fact, the beginning of its liquidation in the course of external administra tion, which, as stated by the FSFRB’s Director, was contrary to the mis sion of external administration and impinged on the interests of the debtor and the creditors. The plan envisaged that the debtor’s entire business be sold under a direct purchase/sale contract, without auc tioning and attracting a large number of buyers. T. Trefilova estimated this approach as a wrong one, because the highest market price can be determined only as a result of open bidding with the greatest possible number of participants. In her opinion, the plan contained no economic substantiation for the conclusion as to the impossibility of achieving any positive results of the enterprise’s activity without transferring the right of ownership to another party. Nevertheless, according to the FSFRB’s Director, the balance sheet receivables amounted to 1.4 billion rou bles. And the first priority in the plan of external administration was to be given to measures aimed at their recovery, which, most probably, would have resulted in the repayment of the main bulk of the enterprise’s debts.
T. Trefilova was also displeased by the fact that the plan did not guarantee full redemption of credit indebtedness, nor the execution in full of the enterprise’s current liabilities.
On the whole, according to the FSFRB’s Director, the plan prepared by A. Zinchenko was of a declarative character, was not substantiated by appropriate estimations, and, in fact, could not be implemented, be ing contrary to the law and the interests of the State and other share holders and creditors.
Also, T. Trefilova noted that the FSFRB had demanded on three oc casions that A. Zinchenko hold a creditors’ meeting, with an amicable settlement on the agenda, and each time the latter refused, whereas in accordance with the law the administrator is obliged, having received such a demand, to call the meeting within two weeks.
However, despite the negative response on the part of the FSFRB’s top officials, the external administration plan for the OJSC “Dal’vostugol’”, prepared by A. Zinchenko, was approved by the credi tors' meeting on January 28, 2003. In this connection, according to T.
Trefilova, who personally represented the state creditors at that meet ing, a number of violations were committed in the course of the latter. In particular, the external administrator failed to place on the meeting’s agenda the issue concerning an amicable settlement, which had been the FSFRB’s initiative187.
Example In 1998, the procedure of external administration was introduced at the Korshunovskii Mining Processiing Combine (MPC) – one of the largest producers of iron ore, with about 5,000 employees, and a budget forming enterprise for the city of Zheleznogorst Ilimskii and Nizhneilimskii Raion of Irkutsk Oblast. According to some data, the main cause of the Korshunovskii MPC’s bankruptcy were the arrears of pay ments accumulated by the exclusive consumer of its product – the West Siberian Metallurgical Combine, presently owned by “Evraz Hold ing”.
In June 2000, the procedure of external administration at the Kor shunovskii MPC was extended until 2008, against the suretyship of the Oblast and local administrations.
In April 2002, the West Siberian Metallurgical Combine almost en tirely stopped its payments for the concentrate being supplied by the Korshunovskii MPC. The latter, having been forced to terminate its op erations, in effect was faced by the prospect of bankruptcy proceed ings. In this connection, “Evraz Holding”, whose activity at the West Si berian Metallurgical Combine had become, in fact, the cause of the profound crisis being experienced by the Korshunovskii MPC, was named as the most likely buyer of the latter’s property.
In November 2002, the situation in respect to the Korshunovskii MPC underwent a fundamental change: it signed an agreement on stra tegic cooperation with the Cheliabinsk Metallurgical Combine (“Mechel”). Within the framework of this agreement, the Korshunovskii MPC began to ship its product to the Cheliabinsk, Magnitogorsk and Orsk Khalilovsk Metallurgical Combines. Soon the Korshunovskii MPC, together with “Mechel”, put forth a proposal concerning an amicable settlement. This initiative was supported by the Legislative Assembly of Irkutsk Oblast, by the Administration of Nizhneilimsk Raion, by several federal departments, by the Trade Union of Mining and Metallurgical Based on reports of the “AK&M” agency, RF FSFRB.
Enterprises of Russia, as well as by the emlpoyees of the Korshunovskii MPC itself. Approximately at the same time the FSFRB conducted an on site audit of the MPC, during which, according to observers’ opin ion, a number of serious errors and violations were committed. In par ticular, the value of the Korshunovskii MPC’s net assets was underesti mated by 100 million roubles. Besides, no due regard was given to the period of the MPC’s fruitful cooperation with “Mechel”. Anyway, the re sults of the audit did not reflect the fact that the enterprise’s solvency had begun to be restored.
In 2003, the Korshunovskii MPC achieved a profitable level of opera tion. By the results of the first four months, the Combine’s balance sheet profit amounted to about 10 million roubles. By the results of the first half year of 2003, the Korshunovskii MPC’s profit was already about 80 million roubles. The average wage at the enterprise rose by 20%. “Mechel” made investments in the Korshunovskii MPC’s basic production and simultaneously began to repay its current debts.
In mid 2003, the FSFRB demanded that the suretyship’s issuers the Oblast and local administrations – repay in full the enterprise’s debt that was subject to a moratorium, which had arisen before the imposi tion of external administration and amounted to more than 500 million roubles. About this time, the Korshunovskii MPC became part of the Steel Group “Mechel”, one of Russia’s largest industrial holdings. The Steel Group purchased the Combine’s controlling block of shares, as well as the main bulk of its debts from its creditors in bankruptcy. The other creditors received proposals concerning the sale of their debt notes. In particular, such a proposal was offered to the East Siberian Railroad (ESR), the Korshunovskii MPC’s liabilities to it having amounted to 5 million roubles, or 0,25% of the total debts. However, the railroad refused to sell the debt, a few days later petitioning to the Oblast Arbitrage Court that the Korshunovskii MPC be deemed to be bankrupt, and the proceedings in bankruptcy be initiated in respect to it. This petition was supported by the Irkutsk Oblast Administration and the FSFRB.
On the eve of the court hearings, the Korshunovskii MPC, in accor dance with the FSFRB demand, redeemed in full its debt on which a moratorium had been imposed. This fact was officially confirmed by the Raion Tax Inspectorate. Simultaneously, the debts due to the creditors in bankruptcy were repaid in full, except those to companies affiliated to the Steel Group “Mechel”. The repayment of the debt to the budget made it possible for the MPC’s creditors to hold a meeting and make a decision concerning an amicable settlement. However, before the mo ment of the hearings, the local tax authorities had received a letter from RF Deputy Minister for Taxes and Levies F. Sadygov, where it was stated that the money transferred by the Korshunovskii MPC for the re demption of the debt on which a moratorium had been imposed (about 500 million roubles) were to be registered as a repayment of current debts. This letter, in its essence, was contrary to the norms established by tax legislation, stating that the decisions as to the allocation of tax payments lay within the competence of none other but the debtor. On the basis of this letter, the FSFRB succeeded in making the arbitrage court recognize as null and void the decisions made by a previously held creditors’ meeting, abolishing the decision concerning the amica ble settlement and dismissing external administrator I. Pomelnikov, whose duties, on the FSFRB’s initiative, were delegated to S. Rozhkov, who, according to some data, was the proté “Evraz Holding” and géof had been nominated by neither the Korshunovskii MPC’s creditors’ committee, nor by a creditors’ meeting.
It is remarkable that after these decisions had been made by the ar bitrage court, F. Sadygov sent another letter, which annulled the state ments contained in the pervious one and recognized the redemption by the Korshunovskii MPC of its debt subject to a moratorium. The Com bine promptly appealed against the court decisions, but the new admin istrator, S. Rozhkov, recalled the ensuing suits.
In July 2003, in accordance with the court’s ruling, S. Rozhkov held a new creditors’ meeting, which was considered to be unlawful by the lawyers of the Steel Group “Mechel”. In their opinion, S. Rozhkov com mited a number of gross violations of the law. In particular, he unwar rantedly altered the meeting’s agenda, having suggested that the credi tors choose a self regulating organization and change the composition of the creditors’ committee. Besides, despite the recognition, by the RF MTS, of the fact of the moratorium debt redemption by the Kor shunovskii MPC, S. Rozhkov entered the FSFRB into the creditor’s reg ister. The new creditors’ committee now included two representatives of the FSFRB and, importantly, a representative of “Evraz Holding”188.
Example In June 2002, the Inter Sectoral Commission for the Supervision of the Efficiency of the Management of State Property of Novosibirsk Oblast made the decision concerning the initiation of bankruptcy pro cedures in respect to the Federal State Unitary Enterprise (FSUE) “Ko meta”, which belonged to military industry and was in the jurisdiction of the Russian Ammunitions Agency. This decision and the actions of the Oblast Administration which followed resulted in a conflict between the Administration and the federal authorities.
As of 1 July 2002, the FSUE’s credit indebtedness amounted to 118.5 million roubles. The commission estimated the situation faced by the FSUE “Kometa” as a crisis, and found it reasonable to impose arbi trage management. In their subsequent comments, representatives of the regional administration were justifying this decision by their desire to prevent the destruction of the enterprise’s production capacity and “to attract efficient owners”. In particular, as Chairman of the Admini stration’s Committee for Industry, S. Bobrov, noted: “An investor would never come to a pre bankrupt enterprise, which is, moreover, a state owned one, because it would be a high financial risk. Within the frame work of external administration the law allows that a business be cre ated and sold – and in this case it would not be difficult to attract effi cient investments”.
However, the natural assumption –that one of the existing large fi nancial industrial groups (for example, those located in Moscow) would come forth as the investor – proved unrealistic. On the contrary, it soon became obvious that it was the Oblast Administration that had the inten tion to make use of the FSUE “Kometa”’ operational potential, or, more exactly, to make it available to the Inter Sectoral Foundation for Energy Conservation and Development of the Fuel and Power Complex of No vosibirsk Oblast, organized by the Oblast Administration back in for the purposes of developing energy conservation technologies and manufacturing plastic piping, heat meters, etc.
Losev A. Kak zakhvatit’ predpriiatiie (How to take over an enterprise). – Novaiia gazeta of 21 July 2003.
The Department for Economic development and Industry of the No vosibirsk Oblast Administration submitted to the Inter Regional Territo rial Body (IRTB) of the FSFRB a petition that the financial status of the FSUE “Kometa” be reviewed and the issue be resolved “on site”. For the post of bankruptcy commissioners, A. Kataev was recommended.
However, the status of a federal state unitary enterprise required that the issue of its financial status be considered at the federal level – within the framework of the Interdepartmental Balance Commission at the FSFRB. The Commission’s meeting took place in mid 2002; however, its conclusions and results were rather vague. And the Russian Ammu nitions Agency’s appeal to the FSFRB with arguments against the en terprise’s bankruptcy was submitted too late.
As stated by Head of the IRTB of the FSFRB for Suberian Federal Okrug A. Kikin, “In Moscow, they agreed that bankruptcy was feasible, and gave us appropriate directions. We implemented all the measures necessary to initiate the procedure in accordance with the new Law “On insolvency (bankruptcy)”. The FSUE “Kometa”’s director, Pavel Kant sler, was not persuasive in his arguments against bankruptcy, and therefore the next step was our petition to the court”.
The plans of the IRTB of the FSFRB were suddenly disrupted by none other than P. Kantsler. In contradiction to his previously expressed wish that the FSUE “Kometa” was not to be deemed to be bankrupt, he himself filed a petition in bankruptcy. Also, according to some informa tion, P. Kantsler coordinated his actions with the Oblast Administration.
The director’s petition, according to A. Kikin, was filed just several days ahead of a similar petition filed by the IRTB of the FSFRB. Thus, the lat ter found itself sidelined, as far as the issues pertaining to the FSUE “Kometa”’s situation were concerned, including the candidate for the post of anti crisis administrator.
According to the representatives of the IRTB of the FSFRB, the initia tion of bankruptcy procedures in respect to the FSUE “Kometa” was unlawful, because at that moment no due regard was given to the rights of its property’s owner, the Russian Ammunition Agency. However, the IRTB’s attempt to file an appeal with the arbitrage court to the effect that the enterprise’s bankruptcy be recognized as unlawful had no suc cess: the Arbitrage Court of Novosibirsk Oblast rejected the appeal.