If I am an S corporation and I file to dissolve my corporation, what will be my personal responsibility? I do not believe I would be able to remain in operation being there would not be any funds or credit to operate.
Answer: Here are some general thoughts
Orange County Business Lawyers, Q#01024, S Corp Dissolution
When a business entity is closing its operation, steps must be taken to remove the entity from the tax and public records.
The shareholders of the corporation and the board of directors will form a plan of dissolution which includes taking care of outstanding corporate liabilities (debts of the corporation) including any outstanding taxes.
Technically, domestic corporations will “dissolve” the existence of the corporation. This means that you must go through the process of officially closing down the business with the California Secretary of State and the California Franchise Tax Board.
Many people who have set up corporations in California without the assistance of a business attorney make the mistake of thinking that they can just walk away from the corporation if it runs out of capital to operate. This is simply not the situation, nor is it best practice for managing the annual corporate records.
In all cases, the business must be in good standing. This means that the corporation must be deemed “active” with the Secretary of State.
To check the status of a corporation, you can go to the website for the Secretary of State where the information is available online. In addition, a Tax Clearance Certificate must be issued for both domestic and foreign for-profit corporations with assets.
All documents for dissolution or withdrawal, including the request for the tax clearance, will be submitted together as part of a package to the “Division of Revenue” better known in the state of California as the California Franchise Tax Board.
Have a related question for Orange County Business Lawyer?
We have a small business corporation in Orange County, California, and we want to expand our operations into the neighboring state of Nevada.
We formed our corporation in Santa Ana, California which is where we have our main location.
We would like to know if we would be able to do business in Nevada under our California Corporation or would we need to file as a new S Corporation in Nevada?
Answer: You may either form a new S corporation in the state of Nevada or you may qualify your current California corporation to do business in the state of Nevada
The choice is yours and you will need to consult with your local business attorney and accountant to see which of the two options will be best for you and your company.
In order to qualify your corporation to do business in the state of Nevada, you will need to make a filing with the Nevada Secretary of State using a form called “Qualification To Do Business In Nevada“.
You will also need to retain the services of a Registered Agent For Service Of Process to accept legal service of process unless you plan to open up a brick and mortar building with employees who can provide that service for you.
All of this is regulated by the Nevada Revised Statutes Chapter 80.
There is of course is a filing fee to do this work. Also, the state of Nevada is interesting in that they will provide expedited services (at increased cost) should you need to get it done quickly.
I formed a corporation by myself. I am the only shareholder, officer, or director of the corporation.
The state requires that I be listed as an officer of the corporation on the annual Corporation report filed with the Secretary of State which is a public document. Because you are a publicly recognized person, it tends to lead people to think that you are a person with deep pockets and have the money to pay off any kind of crazy lawsuits.
In this context, I was wondering if I could use a pseudonym, instead of my legal name, when I file the Statement of Information. What do you think?
In short, I am a publicly recognized person that seems to have led to a rash of threats of lawsuits (which I think are completely frivolous). Hence I would like to use a pseudonym in my Corporate Records.
Answer: I would not recommend that you do it!
I have been practicing law for 30 years and I have never run across this specific question before today.
I think the problem with the analysis for you is that this is a corporation owned by you where you are presumably the sole director and shareholder.
In this type of situation, the various duties and responsibilities of each particular position as it relates to the Corporation get a bit murky. It is common for people to think, in this situation, that they own the corporation and therefore they should be able to do whatever they want.
It may help you a bit to think about it a different way. What if you had made a large investment in this company so you are just a shareholder. You then appoint a board of directors who then hire a 3rd person to be president of the corporation. Let’s say that the president came before a meeting of the shareholders and directors, and stated that he wanted to use a false name in place of his legal name when signing corporate documents including those to be filed with the state government. How would you feel about that?
My guess is that you would immediately object to that notion because the president would be perpetrating a fraud on the state and anyone else who subsequently relied on that public record. Definitely not good for the company.
Therefore I would not recommend that you do it.
Furthermore, I would guess that if you look at the fine print immediately above the signature line on the Corporation Annual Report, you will probably find some language to the effect that you are signing this document under penalty of perjury certifying the truth of the information contained in it. Once you file this document, it becomes a matter of public record.
Now imagine yourself in a situation later on where the corporation has been sued for breach of contract and the complaining party alleges that there is been fraud in the transaction. I would think that any sharp lawyer in Illinois would carefully review all of the publicly filed corporate documents and quickly realize that you had filed documents using a false name.
I would bet that this document, and your testimony relating to the filing of the document, would likely be a foundational piece of evidence in a prosecution against the company because of a recurring case of fraud.
You need to remember that the corporation is not you. It is a separate entity and you have a fiduciary duty to the corporation to act in the best interests of the company.
I think you have got several better options. First, if you are concerned about lawsuits, have the corporation buy an insurance policy for general business liability and another for”errors and omissions” that will specify the company and protect the officers and directors. Secondly, consider hiring someone else to be the president of your company. Third, go through the process to change your name legally.
I hope that some of these thoughts helped. I know that the other attorneys spent some time thinking about this problem for you and we would all appreciate it if you take the time to mark one of the responses as the “Best Answer”. Good luck.
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Many people who have set up corporations in California without the assistance of a business attorney make the mistake of thinking that they can just walk away from the corporation if it runs out of capital to operate. This is simply not the situation, nor is it best practice for managing the annual corporate records.
