For some Wisconsin 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 Wisconsin 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 Wisconsin. 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 an annual report 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, those procedures are not covered in this article.
Wisconsin’s Business Corporation Law (“BCL”) provides for voluntary dissolution by 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 meeting to consider dissolution. Then, at the shareholder meeting, unless your articles of incorporation, bylaws, or board of directors requires a greater vote or a vote by voting groups, a majority of all votes entitled to be cast must approve the dissolution. Make sure to properly record both the board’s proposal and the shareholders’ votes.
The BCL also allows you to avoid a formal meeting and vote if shareholders entitled to vote on dissolution provide their written consent. There are two ways written consent can operate to approve a dissolution. First, dissolution is approved if all shareholders entitled to vote provide their consent. In those cases, no action is required by the board of directors. 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 BCL when shareholders vote at a shareholder meeting. Regardless of whether all shareholders or only a certain 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. There are also requirements for giving notice to nonvoting shareholders at least 10 days before the dissolution becomes effective, and notice to voting shareholders who did not provide their consent not more than 10 days after the dissolution becomes effective. Dissolution based on written consent can be more efficient for small businesses where most or all of the shareholders are directors—and there is general 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 articles of incorporation or bylaws
- prevent the commencement of a civil, criminal, administrative, or investigatory proceeding by or against the corporation in its corporate name
- abate or suspend a civil, criminal, administrative, or investigatory 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 dissolving your corporation, you should file articles of dissolution with the Division of Corporate and Consumer Services of the Department of Financial Institutions (“DFI”). The BCL 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 on which dissolution was authorized;
- a statement that dissolution was authorized in accordance with the appropriate section of the BCL (namely, sec. 180.1402); and
- if your corporation is to retain the exclusive use of its name for less than 120 days after the effective date of its articles of dissolution, a statement specifying the shorter period.
An articles of dissolution form is available for download from the SOS website. There is a $20 fee to file the articles. You must submit the original articles along with one exact copy. Your filing usually will be processed in about five business days. Expedited processing is available for an additional fee.
Be aware that—as suggested in the last listed item just above—your business name will become available for use by others 120 days after dissolution (unless you choose to make it available sooner).
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 BCL, 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 BCL, one way to give notice is by sending a written document directly to known claimants after dissolution. Proper written notice include:
- a description of the information that must be included in a claim
- the mailing address where a claim may be sent
- the deadline, which may not be fewer than 120 days after the written notice is effective, by which the dissolved corporation must receive the claim; and
- a statement that the claim is barred if not received by the deadline.
You also may give general notice of the dissolution to all known and unknown 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 who did not individually receive written notice have two 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.
Wisconsin does not require that you obtain tax clearance before dissolving your corporation. However both the DFI and Department of Revenue indicate that you may need to file a Final Return with the state.
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 DFI 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.