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 Colorado 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 Colorado. 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, 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, those procedures are not covered in this article.
Colorado’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 adopt a proposal to dissolve and recommend it to the shareholders. You are required to give ten days advance notice of the meeting to each shareholder entitled to vote on dissolution. Unless your articles of incorporation, bylaws adopted by the shareholders, or the board of directors require a greater vote, a majority of all votes entitled to be cast must approve the dissolution. (If there are separate voting groups, a majority of all votes in each voting group 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 shareholder meeting and vote if shareholders entitled to vote on dissolution provide their written consent. There are two ways written consent can operate to approve dissolution. First, dissolution is approved if all shareholders entitled to vote provide their consent. Second, if permitted by your articles of incorporation, dissolution may be approved by the consent of only the simple majority of shares otherwise required under the BCA when shareholders vote at a shareholder meeting. Regardless of whether all shareholders or only a simple majority must provide consent, the required number of 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. If you do not obtain the consent of all shareholders entitled to vote, you must give notice to all the voting shareholders who did not consent once you have recorded the required number of consents. 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 either unanimous agreement on dissolution, or, where permitted, at least majority 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)
- 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 name; or
- abate or a suspend a legal proceeding pending by or against the corporation on the effective date of dissolution.
Articles of Dissolution
After dissolving your corporation, you should file articles of dissolution with the Secretary of State (“SOS”). 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 principal office address of the corporation’s principal office; and
- a statement that the corporation is dissolved.
Colorado requires that all articles of dissolution be filed online using the state’s online filing system. (If you want some to see what an old, printed articles of dissolution form looks like, one is still available for download from the SOS website.) There is a $25 fee to file the articles. Your online filing will be processed instantly. As soon as your articles of dissolution are processed, you business name will become available for use by others.
Following shareholder approval of 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.
The BCA does not contain rules for giving notice. However, a related statute, the Colorado Corporations and Associations Act, states that one way to give notice is by sending a written document directly to known claimants after dissolution. Proper written notice must state that, unless sooner barred by any other statute limiting actions, any claim against your corporation will be barred if an action to enforce the claim is not commenced by a deadline that is stated in the notice. The deadline may not be less than two years after the delivery of notice. The statute also mentions that you may include additional information in your notice that may help to facilitate the processing of claims.
You also may give notice to unknown claimants by publishing in a newspaper. As with sending direct notice to individual claimants, there are specific rules for giving notice through publication. Generally speaking, unless another statute creates an earlier deadline, claimants have either five years after the date of newspaper publication or four months after a claim arises, whichever is later, to bring the claim.
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.
Colorado does not require that you obtain tax clearance before dissolving your corporation.
For federal tax purposes, check the “final return” box on your IRS Form 1120 (for traditional corporations) or IRS Form 1120S (for S corporations).
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, mailing addresses, and filing fees, on the SOS 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.