For some corporations, a time comes when the people who own and run things voluntarily decide to close the business. If you’ve reached that point with your Arizona corporation, you’ll need to take care of multiple tasks—including what is called dissolving and winding up your business.
Dissolving the Corporation
Your corporation is registered with the State of Arizona. Officially ending its existence as a state-registered business entity, and putting it beyond the reach of creditors and other claimants, begins with a formal process called “dissolution.” While a corporation may be involuntarily dissolved through a court decree, or for administrative reasons such as failing to file annual reports or pay fees, this article covers voluntary dissolution by a corporation’s shareholders. Also, while there are streamlined procedures for dissolving corporations that have not yet issued stock or not yet started doing business, those procedures are not covered in this article.
Arizona’s Business Corporation Act (“BCA”) provides for voluntary dissolution through a shareholder vote at a shareholder meeting. Before the vote, your board of directors must submit a proposal to dissolve to the shareholders. You are required to give ten days advance notice to each shareholder, whether or not entitled to vote, of the proposed meeting to consider dissolution. Unless your articles of incorporation or board of directors require a greater vote or a vote by voting groups, a majority of all votes entitled to be cast must approve the dissolution. If you use this method, make sure to properly record both the board’s proposal and the shareholders’ votes.
The BCA also allows you to avoid a formal meeting and vote if all shareholders entitled to vote on dissolution provide their written consent. The shareholders must sign a document, known simply as a “consent,” that states the corporation is dissolved. The consent then must be properly entered in the corporation’s records. You must give nonvoting shareholders at least ten days advance notice of the impending dissolution. Dissolution based on written consent can be more efficient for small businesses where most or all of the voting shareholders are directors—and there is unanimous agreement on dissolution.
Certain Matters are Unchanged by Dissolution
Note that dissolution, alone, does not:
- transfer title to the corporation’s property
- prevent transfer of corporation shares (although the authorization to dissolve may provide for closing the corporation’s share transfer records)
- generally subject the corporation’s directors or officers to standards of conduct different from those that applied before dissolution
- change quorum or voting requirements for the corporation’s board of directors or shareholders, change provisions for the selection, resignation or removal of directors or officers or both, or change provisions for amending the corporation’s bylaws or articles of incorporation
- prevent the commencement of a legal proceeding by or against the corporation in its corporate name or any officers, directors, or shareholders, or affect applicable statutes of limitation
- abate or a suspend a legal proceeding pending by or against the corporation or any officers, directors, or shareholders on the effective date of dissolution; or
- terminate the authority of the corporation’s registered agent.
Arizona requires that you obtain tax clearance before you can complete the voluntary dissolution of your corporation. You must request a certificate of compliance from the Department of Revenue (“DOR”). A tax clearance application, including detailed instructions, is available for download from the DOR website. You must transmit the completed application to the DOR by mail or by hand delivery—faxed applications are not accepted. It takes 30 business days to process the application. The DOR will then send you a certificate of compliance which you’ll need in order to file your articles of dissolution (see below).
For federal tax purposes, check the “final return” box on your IRS Form 1120 (for traditional corporations) or IRS Form 1120S (for S corporations).
Articles of Dissolution
After shareholders approve the dissolution of your corporation, you should file articles of dissolution with the Arizona Corporation Commission (“ACC”). The BCA does not strictly require you to file this document, instead stating that a corporation “may” dissolve by filing the articles. However, for various reasons, including limiting liability and terminating various filing requirements, filing articles of dissolution is generally the best practice. (In short, if you don’t file articles of dissolution, you won’t be completing the voluntary dissolution of your corporation.)
To complete the articles of dissolution, you must provide:
- the name of your corporation
- the date dissolution was authorized; and
- both (a) the number of votes entitled to be cast on the proposal to dissolve, and (b) either the total number of votes cast for and against dissolution or the total number of undisputed votes cast for dissolution and a statement that the number cast for dissolution was sufficient for approval.
In addition, if voting by voting groups was required, the information required by in the last item must be separately provided for each voting group entitled to vote separately on the plan to dissolve.
An articles of dissolution form (Form C022) is available for download from the ACC website. When using the ACC form—which is recommended—you must also provide your state-issued ACC file number, date of incorporation, and an indication that the corporation requires a certificate of compliance from the DOR. You should also include the ACC’s cover sheet for filings, which is also available on the ACC website. (The ACC form does not specifically provide for authorization of dissolution by written consent; if your dissolution was based on written consent, you should call the ACC or check with an attorney for guidance.)
There is a $25 fee to file the articles. Your filing usually will be processed in 20 business days. Expedited processing (4-5 business days) is available for an additional fee.
Remember that, before approving your filing, the ACC must have the certificate of compliance issued by the DOR for your corporation. In addition, all past-due annual reports must have been filed. While it is most efficient if you can obtain your certificate of compliance in advance and include it when you file your articles of dissolution, you do have up to six months after filling the articles to submit the certificate.
NOTE: The BCA requires you to publish a copy of your articles of dissolution within 60 days after they are approved by the ACC. The articles must appear multiple times in a newspaper. (Up until September 2009, you were also required to obtain an affidavit of publication from the newspaper publishing the articles, but the BCA was revised and the affidavit is no longer mandatory.) For more details, check with the ACC or a business attorney.
Finally, be aware that your business name will become available for use by others after dissolution.
Following dissolution, your corporation continues to exist only for the purpose of taking care of certain final matters that, collectively, are known as “winding up” the company. It may be appropriate to designate one or more officers and/or directors to handle the winding up.
Under the BCA, key winding up tasks include:
- collecting the corporation's assets
- disposing of corporation properties that will not be distributed in kind to shareholders
- discharging or making provision for discharging the corporation’s liabilities; and
- distributing remaining corporation property among shareholders according to their interests.
Regarding the last two listed items, be aware that your corporation’s first obligation is to discharge liabilities. This includes paying all business taxes and creditors. Only then may the corporation distribute remaining assets to shareholders.
Notice to Creditors and Other Claimants
One other key task is giving notice to creditors and other claimants of your corporation’s dissolution. Giving notice is optional. However, doing so will help limit your liability and also allow you to more safely make final distributions to shareholders.
Under the BCA, one way to give notice is by sending a written document directly to known claimants after dissolution. Proper written notice must:
- describe information that must be included in a claim
- provide a mailing address where a claim may be sent
- state the deadline, which may not be fewer than 120 days from the effective date of the written notice, by which the dissolved corporation must receive the claim; and
- state that the claim will be barred if not received by the deadline.
You also may give notice to unknown (potential) claimants by publishing in a newspaper. As with sending direct notice to known claimants, there are specific rules for giving notice through publication. Generally speaking, claimants have five years after the date of newspaper publication to bring a claim.
Some of the rules for giving notice and responding to claims can be hard to understand. Therefore, if you choose to give claimants notice, you should strongly consider getting assistance from a business attorney.
An S corporation is a corporation that has filed an election with the IRS to have business income, losses, deductions, and credits pass through to individual shareholders for federal tax purposes. Only the shareholders, and not the corporation, pay federal taxes on income from the business. Potential tax issues aside, the process for dissolving and winding up an S corporation is generally the same as dissolving and winding up a traditional corporation.
Is your corporation registered or qualified to do business in other states? If so, you must file separate forms to terminate your right to conduct business in those states. Depending on the states involved, the form might be called a termination of registration, certificate of termination of existence, application of withdrawal, or certificate of surrender of right to transact business. Failure to file the additional termination forms means you’ll continue to be liable for annual report fees and minimum business taxes.
You can find additional information, such as forms and instructions, mailing addresses and fax numbers, and filing fees, on the ACC website.
For information on dissolving and winding up corporations formed in other states, check Nolo’s 50-state series on dissolving corporations.
Final Note: Dissolving and winding up your corporation is only one piece of the process of closing your business. For further, general guidance on many of the other steps involved, check Nolo’s 20-point checklist for closing a business and the Nolo article on what you need to know about closing a business.