When your incorporated business fails, you may be more at risk than you think.
I know you incorporated to separate yourself as the owner from the risks of the business. The corporation is a separate legal person, distinct from the individuals who own the stock in the corporation.
But when the business has to shut down, the actual degree of separation is tested.
You’ve got to know if the business can safely file bankruptcy.
Or, will using bankruptcy to shut down the business drag the owners down as well?
Can this corporation safely file bankruptcy?
Businesses looking to go out of business typically file Chapter 7. The business closes, a trustee is appointed, and any valuable assets are sold for the benefit of creditors.
The trustee then controls the corporate checkbook and the timeline on which creditors get paid through the courts.
Bankruptcy trustees are further empowered to recover money paid by the debtor corporation where the transfer is a preference or a fraudulent transfer. That’s the beginning of the complications in a business Chapter 7.
Before choose bankruptcy as the method for winding down, consider these five potential complications.
1. Owe payroll taxes?
Corporate officers and anyone with signature authority on the corporate bank account may have personal liability to the IRS and any state taxing authority for amounts withheld from the paychecks of employees.
This liability exists whether the corporation files bankruptcy or winds down outside of bankruptcy.
More about “borrowing” from Uncle Sam
Filing bankruptcy may preserve assets from other aggressive creditors from which those taxes can be paid. That benefits the individual officers, since every dollar the trustee pays on payroll taxes reduces what they’ll have to pay.
But bankruptcy empowers the trustee to hire professionals, investigate the debtor’s books, and pursue recovery of money owed to the corporation, either under state law, or under bankruptcy law.
The expenses of that pursuit are paid ahead of the priority taxes.
Thus a bankruptcy filing could work to shrink the pool of money for payment of payroll taxes, and drag out the time before payment is made.
2. Made guarantees?
Landlords often require the personal guarantee of the individual shareholders before they commit to a real property lease for the corporation. Or the lease may have been in the shareholder’s name from the start.
Any individual guarantor on a lease gets no protection from his obligations to the landlord when the tenant corporation files bankruptcy.
A bankruptcy trustee calls the shots when a corporation files Chapter 7. He’s got the keys.
Trustees are usually quick to either vacate the premises or surrender it back to the landlord, freeing the landlord to look for new tenants.
But any pre bankruptcy lease arrears have no priority for payment in the bankruptcy case, so if there is a dividend payable to the landlord, it may be small and far in the future. The individual is on the hook.
3. Used corporate credit cards ?
Almost without exception, some living, breathing human being is personally liable for every credit card. Even if the card has the business name embossed on it, the application for that card undoubtedly contains a promise of the owner to pay the card issuer.
So, any liability of the individuals on the credit card won’t be eliminated by the business’s bankruptcy.
It can get worse: the corporation may not, in fact, be liable at all on the card. Not all “business credit cards” are really issued to the business. They’re issued to the people who run the business.
Filing bankruptcy doesn’t make the situation worse: if the corporation is liable and if there are assets to pay creditor claims, the credit card folks get something toward the balance. Only it’s a long time down the road.
4. Benefited from paying the bills?
File bankruptcy for the business, and you may get yourself sued by the trustee for an avoidable preference.
When you and the business are jointly liable for a debt, every payment the business makes on that debt reduces your personal exposure to the creditor. And that, in the eyes of the law, is a preference.
The bills that the business paid to your benefit when other bills weren’t getting paid is an unfair discrimination between creditors of the business. The trustee is authorized to sue you to make it more fair to other creditors.
The problem of preferences is the only item on this list of complications that is unique to bankruptcy. Depending on the facts of the business’s operation, filing a Chapter 7 may just invite a lawsuit against you as the shareholder.
5. Enjoyed business help with personal expenses?
The more corporate money that flowed to insiders, the greater the threat that a bankruptcy trustee will challenge the payments,.
“Challenge” here is shorthand for “sue you”, or at least look hard at expenditures that made life easier for shareholders at a time when other creditors weren’t getting paid.
Often, the facts are just the opposite: the shareholders were putting more money into the corporation, or going without to keep the business afloat.
But the idea of a fraudulent transfer, a payment for which the payor did not get a fair return for its money, has a long lookback period. A bankruptcy trustee could be looking back years to see if the shareholders got more than was fair under fraudulent transfer law.
And if the books and records are sketchy, the shareholders may end up spending lots of time producing documents or explaining what happened.
Even if the end result is OK, the experience can be unnerving.
The bankruptcy takeaway
The issue of how to close out a failed corporate business can be complex. While I’ve listed the ways a corporate bankruptcy might end up biting the shareholders, the benefits can be equally significant.
File bankruptcy and much of the wind down work passes to the trustee. The business creditors understand there is nothing available to pay their claims against the corporation. Assets are distributed in an orderly and predictable manner.
Make sure you’ve asked yourself the five questions I’ve laid out and that you take your answers to experienced bankruptcy counsel for a review.
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