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 Iowa corporation, you’ll need to take care of multiple tasks—including what is called dissolving and winding up your business.
NOTE: Iowa’s Business Corporation Act (“BCA”) was recently amended with new rules that take effect on January 1, 2014. This article is based on those new rules.
Dissolving the Corporation
Your corporation is registered with the State of Iowa. 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 a biennial report, 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.
The 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, bylaws, or board of directors requires a greater vote, a greater number of shares to be present, or a vote by voting groups, a majority of all votes entitled to be cast must approve the dissolution. If you use this method for dissolution, 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, unless otherwise provided in your articles of incorporation, dissolution is approved if 90% of 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 what majority of voting shareholders 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. You must give notice to nonvoting shareholders not more than 10 days after you have collected the written consents needed to dissolve. In addition, if you do not have unanimous consent of the voting shareholders, you must also provide notice of the action to dissolve to all voting shareholders who did not consent; you must give this notice within 10 days after you have collected enough written consents to dissolve. 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 general agreement among these shareholders 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
- prevent the commencement of a legal proceeding by or against the corporation in its corporate name
- abate or a suspend a legal proceeding pending by or against the corporation on the effective date of dissolution; or
- terminate the authority of the corporation’s registered agent.
Articles of Dissolution
After the voting shareholders have approved the dissolution of your corporation, you should file articles of dissolution with 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.)
The articles of dissolution must provide:
- the name of your corporation
- the date dissolution was authorized; and
- a statement that the proposal to dissolve was duly approved by the shareholders in the manner required by this chapter and by the articles of incorporation.
The SOS has no form for the articles of dissolution, so you will have to draft your own. You may want to consider contacting an attorney to assist with this document.
There is a $5 fee to file the articles of dissolution. You can file by mail, fax, or in person. In-person filings can be processed while you wait. Other filings usually take 1-3 business days.
Note 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 three 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.
Iowa does not require that you obtain tax clearance before filing to dissolve 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, instructions, filing fees, mailing addresses, phone numbers, and other contact information, 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.