With business still not picking up, especially to small businesses, it is not a surprise to see business owners wanting an OIC with IRS. This business owner could be deep in debt besides to IRS. That even if he sold his business, it would not break-even to settle tax debts. This business owner may just be praying right now for a tax debt relief.

Bankruptcy, whether personal or business, can be used as a reason to ask for tax relief from IRS. For a business, showing financial and income statements proves how badly in shape the business is in. And that paying for tax debts at this point is simply impossible. IRS in turn will consider this and might allow a business owner for a tax relief.

The settlement could mean that this taxpayer will still pay the tax debts but the amount is reduced. It can be that any penalties will be abated, but the taxpayer has to pay the full amount in staggered payments. Alternatively, tax debts can be totally wiped out if the situation of the business really merits it.

Technicalities on how long the tax debt has to will, however, hinder tax payers’ hope for a tax debt relief. Because according to tax codes, tax debts unpaid for three years must be paid full before tax relief is granted. And the very recent tax debts and penalties are ones subjected to legal proceedings. That is to consider the said debts for a tax debt relief.

While the business owner cannot also use tax debt relief as a means to escape from paying for local taxes. It is because local tax debts cannot be included in the declaration of bankruptcy. Instead, this must have paid in full before business income tax debts can reach a settlement.

There is much other tax debt payment that bankrupt business owner settles before finally availing tax relief. Compliance of the business owners is demanded by IRS, lest no tax debt relief will ever be granted. In other words, bankruptcy cannot be relied solely as a way to escape paying for taxes. It is because there are non negotiable tax debts that must be settled first.

If I go bankrupt can I continue to run my business?

For senior business managers or owners, Bankruptcy is not an option if you want to continue managing your business.

Where you have debts which you have no hope of repaying, bankruptcy can be an extremely useful solution, which over 6000 people a month use to solve their debt problems.

For those people who are not a home owner, or do own your home but have little equity in it then you will not lose your property in bankruptcy. You will also be able to retain reasonable household goods and personal possessions. However for those running a business it is not such good news. If you are running a business as a director of a limited company or as a sole trader, you need to be very careful before deciding to go down the bankruptcy route.

The effect of Bankruptcy on company directors

You cannot declare bankruptcy and continue to act as the director of a company or be involved in its management. This means that if you are a company director and want to remain in this position, bankruptcy is not an option for you.

It is also not an option to simply resign as a director and then to keep on running your business as before. Under the terms of your bankruptcy, this activity is not allowed.

As such unless you are able to introduce a new director or can leave the management of your business to other competent individuals, on declaring bankruptcy you would effectively be required to close your business.

The Individual Voluntary Arrangement was introduced into English law to act as an alternative to bankruptcy for company directors and therefore overcome this problem.

The effect of Bankruptcy on sole traders

As a sole trader, you are not a director of a limited company. Therefore under the terms of the law, if you declare bankruptcy you can continue to run your business.

However, the issue that you will face is that once bankrupt, all of your bank accounts including any business accounts will be closed. This will mean that you will lose your business banking facilities such as your overdraft and credit card.

It will be possible for you to open a new personal bank account after you are declared bankrupt. However, this will be a simple account known as a card cash account. You will not normally be given a debit card or an overdraft facility with this type of account.

If you believe that your business will not be able to operate without credit facilities such as an overdraft, then declaring bankruptcy may make continuing to operate your business impossible.

The effect of Bankruptcy on employees

As with a sole trader the law does not stop you declaring bankruptcy and working for a company even in a senior position If your title within the company is known as director, but you are not registered as such at company’s house, then you can still declare bankruptcy.

There are some positions particularly in the finance arena where your contract of employment may may mean that you can be dismissed if you declare bankruptcy. If you believe that this may be the case, it is always sensible to check before declaring bankruptcy.

Bankruptcy is an extremely good way of dealing with a serious debt problem for many people. However, if you are a company director or run a sole trading business , you need to think carefully and take further expert advice before proceeding with this option.

In Thailand, Bankruptcy Laws form part of the Commercial Law. Thai bankruptcy law is devised in such a way not only to help debtors to distribute their property but also to help them in rehabilitating via several reorganization provisions.

In other words, the Bankruptcy Law includes the Bankruptcy Act for Business Rehabilitation. The Business Rehabilitation Law was introduced in 1999 as Chapter 90 of the Thai Bankruptcy Law BE 2483. The main purpose of the Business Rehabilitation law is to assist a debtor facing liquidity problem by giving him an opportunity for rehabilitation before being insolvent.

The procedures in connection with rehabilitation are usually commenced by an eligible petitioner by filing a petition with a provincial or a civil court as per the domicile of the debtor. However, petition for business rehabilitation could be filed only if the debtor’s overall debt comes to an amount that exceed Baht ten million. Likewise, In order to file a petition for business rehabilitation, certain legal and perquisites must be complied with such as:

- The names and addresses of creditors must be specified to whom the debtor owes in total at least an amount of Baht ten million

- Specify reasonable methods in order to rehabilitate business functions

- Proposed planner’s name as well as qualification

- Planner’s consent

- In case the petitioner is debtor, then details regarding assets and liabilities must be given

- Consent of authorities which is applicable as mentioned below :

1.In case the debtor is commercial bank or finance company, then the consent of the Bank of Thailand

2.In case the debtor is a securities company, then the consent of the Office of the Securities and Exchange Commission

3.In case the debtor is a file insurance company or a casualty insurance company, then the consent must be of the Insurance Department

On filing the petition as per the above grounds, the liquidator will start the case once when he confirms and proves that the debtor’s assets could not pay off liabilities. The court’s concern with regard to the business rehabilitation is mostly on the basis of debtor’s balance sheet as well as accounting documents and liquidator’s power of arguments. Discussed further in detail in this article are procedures with regard to business rehabilitation.

According to the Article 90 of the Bankruptcy Act, once the petition for business rehabilitation is accepted, a planner is appointed, who in turn possesses duties and powers to manage the debtor’s business as well as assets. In case, a planner is appointed, then the debtor executive’s power in administering the business and assets would cease. In such a situation, until the appointment of a planner, the court will employ one or more persons or sometimes the debtor’s executive for a temporary period to deal with the debtor’s business and assets under the administration of the receiver.

During this interim period, the receiver has complete right to administer interim executives and to order them to prepare explanation regarding the account details as well as anything pertaining to the management of business and assets. The interim executives would be relieved from the powers of receiver by the court when the receiver makes a motion.

In such situations, the court would employ new provisional executive to presume the office. In case the court does not appoint interim executive, then according to the Section 90/20 of the Bankruptcy Act, the receiver would be given power for a temporary period to manage debtor’s business and assets. Likewise, according to the Section 90/21 of the Bankruptcy Act, until a planner is appointed, all of the rights of the debtor’s shareholders would be suspended except for in the case of right to obtain dividends.

Once the acknowledgement order for business rehabilitation has been received, the debtor’s executive should handover everything from assets and seals to book keeping ledgers and documents pertaining to business, assets, and liabilities of the debtor to the provisional executive or the receiver.

Nowadays, a number of leading law firms is in the scenario to provide excellent services in connection with business rehabilitation and bankruptcy. Many of them undertake a plethora of such services in connection with business reorganization as analysis as well as consultation with creditor or debtor, filing petition for business rehabilitation, plan administration, and planner representation.

Product Description
An essential guide to business valuation and bankruptcy Business Valuation and Bankruptcy helps you-whether you are an accountant dealing with a troubled company, a lender, an investor, a bankruptcy and restructuring lawyer/financial advisor, or a private equity player-to focus on solving everyday and case determinative disputes when creditors, lenders, and debtors have differing views of value. Introducing valuation issues early on in the restr… More >>

Business Valuation and Bankruptcy

Rep. Thaddeus McCotter with Cheryl Casone and Tom Sullivan