Submit your information to schedule a free consultation with attorney Andrew M. Doktofsky.
Small business owners are often faced with personal debts they are unable to pay. These debts may have resulted from using credit cards to pay for business expenses, taking on personal loans, or investing personal savings into the business. Delis, restaurants, beauty salons, retail stores, and home improvement contractors are some of the most common types of small businesses in New York
Contact the law firm of Andrew M. Doktofsky, P.C. at (631) 673-9600 for your questions about bankruptcy for small business owners. Call Andrew M. Doktofsky, P.C. today if you have questions about how bankruptcy will affect your business throughout the areas of Suffolk County and Nassau County, New York. His clients come from either end of Long Island, including Deer Park, Babylon, West Islip, Bay Shore, Brentwood, Hauppauge, Huntington, Lindenhurst, Hempstead
A business organized in New York as a sole proprietorship does not have an identity separate from its owner. In that case, any debts incurred in the name of the business are considered to be debts of the individual owner.
If a New York business is organized as a corporation or limited liability company, it is a legal entity separate from its owners. The purpose of forming a corporation or LLC in New York is to limit the personal liability of the shareholder(s) (in the case of a corporation) or the member(s) (in the case of an LLC). This is very important when liability may arise, for instance, in a breach of contract of action. For instance, if the corporation contracts to purchase goods, and fails to pay for them, the corporation is liable for payment, but the shareholders are not. However, this rule usually does not apply to credit extended to a small business corporation or LLC, because such credit requires either a personal guaranty from an individual owner, or that the individual be jointly liable for the debt.
The end result, regardless of the manner in which a New York small business is organized, is that the individual owner is liable for loans made to the business and for credit cards issued in the name of the business.
A personal bankruptcy filing is often the best way for an individual business owner to obtain relief from overwhelming debt. However, if you are a small business owner considering bankruptcy, it is important that you consult with an experienced bankruptcy attorney. There are many issues that need to be addressed, and several potential pitfalls that must be carefully considered, before filing for bankruptcy.
If the business has already closed down, then it is important to account for any equipment, inventory, or other business assets remaining. Often, such assets will be encumbered by security interests of creditors. A security interest means that the creditor has a right to recover the assets to satisfy the debt. Often, a lender will take a security interest in all of the business’s assets in order to secure a loan made to the business. Another common scenario is when a seller of a small business, such as a deli, agrees to take payments of the purchase price over time, and takes a security interest in the assets of the business. If the purchaser fails to make the payments, the seller may take back the business assets.
Assets subject to a security interest may be turned over to the secured lender, who, in turn, will sell the assets to satisfy the debt. In reality, however, the assets are usually worth far less than the amount owed. In that case, the business owner will be liable for the difference.
Assets that are not subject to a security interest must either be preserved, to turn over to the bankruptcy trustee, or sold for fair value. If sold, the proceeds must either be preserved, or used to pay the company’s creditors. The one thing that the owner of a failing business must not do is to take the company’s assets for his or her personal benefit. A Chapter 7 trustee will look closely at all transactions between the business and the debtor for the period of time leading up to the bankruptcy.
If the business is still operating, the debtor needs to decide whether to continue operating the business or to shut down. The most important factor is whether the business is profitable. Debtors often try to keep a business going, often due to the emotional commitment that the debtor has invested in the business, even when it is clearly losing money. It is important to remember that any new debt incurred after the bankruptcy filing will not be discharged. Consequently, the debtor will be liable for any post-petition debt incurred in order to keep a failing business afloat.
A debtor’s interest in a business is an asset that can be sold by a Chapter 7 trustee.
A debtor’s interest in a business may consist of either shares in a corporation or a membership interest in a limited liability company. In either case, the debtor’s ownership interest is an asset that must be disclosed in the bankruptcy filing. The major issue is whether the ownership interest has any value. In the simple case of a single shareholder corporation, the question is whether the corporation’s assets exceed its liabilities. If so, a bankruptcy trustee may sell the corporation’s assets, pay the corporation’s debts, and use the remainder to pay the debtor’s creditors. However, even where the corporation or LLC appears to have zero net value, a Chapter 7 trustee may still try sell its assets, using a variety of legal theories. Careful analysis of all potential outcomes is important prior to filing a Chapter 7 bankruptcy.
In the alternative, the Chapter 7 trustee may find a buyer for the debtor’s ownership interest in the corporation. In this case, a buyer would purchase the debtor’s shares, thus assuming ownership of the corporation, along with taking on the corporation’s liabilities. This would generally only happen in the case of an ongoing business that could be operated profitably by someone other than the debtor.
Keep in mind that a company’s assets consist of more than equipment and inventory. Customer lists, existing leases, telephone numbers, and business names are all intangible assets that may have value.
Receivables are an asset that can be taken by a Chapter 7 trustee.
Money owed to a debtor is an asset that must be disclosed in a bankruptcy filing. This includes business receivables, i.e., money due for services performed, or goods sold, by the debtor’s business. In the case of a debtor operating as a sole proprietor, receivables may be taken outright by a Chapter 7 trustee. The debtor may be able to exempt all, or a portion of , the receivables, by utilizing the federal wildcard exemption, of up to $12,725. However, the debtor’s ability to use the wildcard exemption depends on other factors, such as whether a homestead exemption must be claimed to protect the debtor’s home.
If the debtor’s business is a corporation or LLC, the receivables are considered an asset of the business, and are treated in the same manner as other corporate assets, as described above.
Sales taxes and payroll taxes are not dischargeable in small business bankruptcy.
Taxes owed to governmental entities for sales taxes or withholding taxes are not dischargeable in bankruptcy. Small business owners are still responsible to pay these taxes, even after filing for bankruptcy. These taxes are considered priority debts, meaning that they must be paid in full before any unsecured creditors are paid. So to the extent that the debtor has any assets that will be sold by a Chapter 7 trustee, these priority debts will be paid first, thereby reducing or eliminating the debtor’s responsibility for paying them after the bankruptcy case is closed.
Debtors who operate a business under a franchise agreement in New York must be very careful before filing a Chapter 7 bankruptcy, if the debtor wishes to continue operating the business. A franchise agreement is what is known as an “executory contract”. In Chapter 7, only the bankruptcy trustee has the right to either reject, or assume, such contracts. If the trustee fails to assume the contract within 60 days of filing of the bankruptcy petition, the contract is deemed rejected. In that case, the franchise agreement will be deemed to have been breached, with the consequence that the debtor no longer has the right to operate under the agreement. This may result in the debtor being forced to cease operating his business.
In the alternative, the Chapter 7 trustee could assume the franchise agreement. However, the only purpose in doing so would be for the Chapter 7 trustee to sell the business or assign the franchise agreement.
No matter what the Chapter 7 trustee decides to do, filing a Chapter 7 bankruptcy can be extremely risky for a debtor that operates a business under a franchise agreement. If a bankruptcy is necessary, however, the debtor can file a Chapter 13 bankruptcy. In Chapter 13, unlike in Chapter 7, the right to assume or reject contracts belongs to the debtor, not the trustee. Thus, a debtor in Chapter 13 may assume a franchise agreement and continue operating his or her business.
As can be seen from the above, a small business owner contemplating a bankruptcy may risk losing the business in a Chapter 7 bankruptcy. If a debtor wishes to continue to operate the business, it may be necessary to file a Chapter 13 bankruptcy. In Chapter 13, the debtor retains their ownership interest in the business and may continue to operate the business. However, the debtor must propose to repay unsecured creditors at least what the creditors would receive in a Chapter 7 bankruptcy. Thus, it may be necessary to obtain an estimate of the value of the business.
While a corporation or LLC can file for Chapter 7, it rarely makes sense for the typical small business. First, when a corporation or LLC files for bankruptcy, it ceases to operate. Generally, the sole purpose of filing a Chapter 7 for a corporation or LLC is to provide for a structured liquidation of the company’s assets in order to pay its creditors. This is rarely necessary for a typical small business. For larger companies, a Chapter 7 bankruptcy allows the owners to turn over the company’s assets to a Chapter 7 trustee, who will sell the assets and pay the company’s creditors with the proceeds.
Contact the law firm of Andrew M. Doktofsky, P.C. at (631) 673-9600 for a free consultation about bankruptcy for small business owners in Suffolk County and Nassau County, New York. This includes areas in and around North Bay Shore, North Babylon, Lindenhurst, Commack, Central Islip, Hempstead, Freeport, Long Beach and surrounding areas. Andrew M. Doktofsky is an experienced Long Island bankruptcy lawyer who will answer your questions about the effect bankruptcy will have on your small business.