Filing for Chapter 7 bankruptcy can be a valuable option for corporations and limited liability companies (LLCs) that are going out of business. But filing for Chapter 7 bankruptcy has limited value and isn't used as frequently as you might think because:
Read on to learn about how Chapter 7 bankruptcy can help corporations and LLCs and Chapter 7 pitfalls you'll want to avoid.
Also, did you know that many business owners file for personal bankruptcy? It's one of the other ways bankruptcy can help you continue a small business.
Yes, an LLC can declare bankruptcy, and so can a traditional corporation. But the type of bankruptcy filed will determine whether the LLC or corporation remains open and operational after the bankruptcy filing.
Filing a Chapter 7 bankruptcy will close the LLC or corporation. To keep a company open and operational, Chapter 11 or Chapter 11, Subchapter V are better options. Here's why.
A Chapter 7 bankruptcy filing works differently for businesses than it does for individuals, and this is especially true for corporations and LLCs due to two factors:
Each of these three factors makes it riskier for corporations and LLCs to file for Chapter 7 bankruptcy, even if the only goal is to close the business in a transparent way.
One reason Chapter 7 can be risky for a corporation or LLC is that it's a separate legal entity. Once it's created by filing documents with the secretary of state and paying registration fees, the newly formed business owns assets and is legally liable for paying its debts.
Because corporations and LLCs are separate entities, people don't own them outright. Instead, individuals own stakes in the company rather than the company itself. For instance, an individual corporate shareholder will own shares of the corporation. An LLC member will hold an ownership interest outlined in the LLC's operating agreement. Each type of ownership interest entitles the holder to a portion of its value and profits.
These types of business structures work well for people who want to participate in business without risk to their personal wealth. The structure prevents business creditors from coming after an individual's personal assets (although it doesn't always work—more below). To learn more, see Business Formation: LLCs & Corporations.
Example. A shareholder or member who files an individual bankruptcy (not a business bankruptcy) won't list the company as an asset in the bankruptcy paperwork. Instead, the filer will list the value of the corporate shares or the value of the LLC ownership interest as property owned. The bankruptcy trustee can sell only the filer's interest in the company, not the entire business, unless the filer is the sole shareholder or member, of course.
As an aside, few bankruptcy asset buyers are willing to purchase a partial interest in a small business. This fact can come into play when filing personal bankruptcy and calculating the risk of the Chapter 7 trustee selling the filer's business ownership interest.
When shutting the doors of a corporation or LLC, the corporate officer or the LLC's managing member must sell off or "liquidate" the company assets and distribute the funds to the creditors. Notice of proper closure must be filed with the secretary of state. Failing to follow these procedures could subject individuals holding an ownership interest to liability.
The requirements are intended to discourage the funneling of assets to insiders (stakeholders, business partners, and family members) because a creditor loses the ability to collect any remaining balance from the business once the business closes.
Unlike Chapter 11 bankruptcy, Chapter 7 doesn't have a mechanism that allows for the continued operation of a corporation or LLC. Filing this chapter will shut down the company.
The bankruptcy trustee will sell all of the corporation or LLC assets and distribute the proceeds among creditors according to the priority rules established in bankruptcy law (exemptions—the law that allows individuals to protect property in bankruptcy—aren't available). The goal is orderly business liquidation.
Not only will filing Chapter 7 close the business, but corporations and LLCs don't receive a debt discharge. It isn't needed. A creditor can't collect from the company once it's no longer operational. Nothing of value will be left to take.
Also, leaving the debt in place—rather than wiping it out—allows a creditor to pursue actions against individuals when appropriate. For instance, a creditor might seek payment under a personal guarantee (an agreement to be personally responsible for business debt) or pursue litigation under an alter ego or fraud theory (more below).
So why would a corporation or LLC file a Chapter 7 case?
Winding down a business in bankruptcy allows for a higher level of transparency. It's easier to prove that the closure took place in the manner required by law, which, in some cases, might prevent a disgruntled creditor from pursuing litigation, but not always. Here's why.
A Chapter 7 liquidation can help alleviate a common creditor concern—that an officer or member might be diverting funds into private coffers rather than paying creditors. A business Chapter 7 is set up to sell the company's assets and pay its obligations in a very public manner.
When effective, the officers and managing members get to step away from the closure and leave the hard work of selling off assets and paying creditors to the bankruptcy trustee.
When you file for Chapter 7, you lose control of the company. The bankruptcy trustee takes over the business assets and determines whether it's in the best interests of the creditors to sell the business as a whole or to sell off the assets.
If you're liable for any business debt, this might cause a problem. After the bankruptcy, the remaining debt will often be greater than if you took on the responsibility of selling the assets yourself. There are a few reasons this could happen.
Any outstanding balance left after the trustee makes a payment will remain due and payable. As a result, you could be left with more liability than if you had negotiated with the creditors and sold the assets on your own.
Another disadvantage can prove to be even more expensive. Filing a case in bankruptcy court provides a disgruntled party—whether it be a creditor, business partner, or ex-spouse—with a forum to air any number of complaints about the handling of the business finances. And most disputes have the potential to shift debt liability from the business to an individual.
For instance, it doesn't take much effort for a creditor to show up at the 341 meeting of creditors—the one hearing that all filers must attend—and provide the trustee with investigation-prompting information. When this happens, it's common for a relatively short creditor's meeting to be continued to allow for more thorough (and possibly uncomfortable) questioning.
It's also fairly simple for a creditor to file an adversary proceeding—essentially a lawsuit—alleging any liability-shifting theories that would allow a creditor to collect from an individual's personal assets. The possibility of opening the door to these types of litigation is often enough for most to avoid this chapter (more below). For more information, see Adversary Proceedings in Bankruptcy.
Even though corporate entities and LLCs are responsible for their own debt payment, individuals can still find themselves liable for business obligations. Here are a few situations that can give rise to personal liability.
Putting the company through a Chapter 7 bankruptcy can help with these personal obligations, but only if the Chapter 7 trustee liquidates enough property to satisfy the debt. If a balance remains after the bankruptcy case, the creditor will be able to pursue the individual's personal assets. To learn more, check out When You Might Be Personally Liable for LLC or Corporate Debt.
If you're liable for a personal guarantee, filing for bankruptcy can prove helpful. The most straightforward solution is often to file a consumer Chapter 7 bankruptcy. An individual can usually get rid of a personal guarantee for debts other than student loans—even if the business remains open—because most business debt can be discharged in an individual bankruptcy case.
Better yet, if most of your debt is related to the business (as opposed to consumer debt for personal needs), you might be able to qualify even if your income exceeds Chapter 7 limitations. Having more business debt than consumer debt allows you to avoid Chapter 7 income requirements and the means test. So even if you have a healthy income, you still might be able to wipe out the personal guarantee in Chapter 7 bankruptcy.
If, however, your debt mix is such that you can't avoid the means test and you don't qualify for Chapter 7, you can always pay off the guarantee over five years in Chapter 13 bankruptcy. Also, although Chapter 7 bankruptcy won't wipe out liability arising from most taxes and fraud, you can pay off these types of debts over time by filing for Chapter 13 bankruptcy. Find out more by reading The Bankruptcy Means Test: Are You Eligible for Chapter 7 Bankruptcy?
Did you know Nolo has been making the law easy for over fifty years? It's true—and we want to make sure you find what you need. Below you'll find more articles explaining how bankruptcy works. And don't forget that our bankruptcy homepage is the best place to start if you have other questions!
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