If you file personal bankruptcy, it can take a significant toll on any
business ownership in your name, depending on how the business was legally
organized and the type of bankruptcy petition filed with the court. Under
United States bankruptcy code, there are two types of filings for individuals;
they are indicated by “Chapter” numbers, and personal bankruptcies
Chapter 7 or
Chapter 7 represents the most common type of filing, which is the liquidation
bankruptcy. In this process, the court appoints a trustee, which may be
an entity or individual, to oversee a liquidation of all the filer’s
(non-exempt) assets in order to satisfy debt claims. “Non exempt”
applies to property that the court permits the debtor to keep in spite
of the declaration, and the assets and their value vary state-by-state.
In a Chapter 7 filing, the debtors ownership in a business may be considered
an asset that can be liquidated; methods for placing a value on the asset
can vary widely, and a debate can arise over proportions of ownership
in the case of a closely held corporation.
A business can file a Chapter 7 unlike a Chapter 13. However the business
does not get a discharge but rather it is a process to liquidate any assets
of the business in an organized fashion and equally distribute it to creditors
on the basis and priority of their claim. Any balance left owning is wiped
out. Usually if a business does not want to close down and liquidate all
assets then they can file a Chapter 11 to reorganize and pay back their
The second type of bankruptcy filing for individuals proposes a reorganization
plan and is called a Chapter 13 filing ; that is, taking into account
the assets, debts, and potential future sources of income or revenue,
the debtor’s creditors agree with the court or trustee on settlement
or repayment plans. Only individuals can file for Chapter 13. Therefore
if you are a sole proprietor or own shares in a corporation you can file
an individual Chapter 13 and list your property interest on schedule B
to exempt the equity / property interest that you have in it. Also in
a Chapter 13 there are debts limits of approximately 1 million in secured
debt and approximately 380k in unsecured debt.
Your Business Equity in a Chapter 13 Filing
In a reorganization bankruptcy filing, the court will mandate a strict
repayment plan and personal living budget, which the filer must agree
to, often for several years. Business ownership assets could be affected,
as it is likely that some portion of the monies for debt repayment will
flow from the business to the individual.
The Legal Formation of Your Company May Affect the Bankruptcy Outcome
The legal organization of a small business usually takes one of three forms:
- a sole proprietorship
- an LLC (limited liability corporation)
- a corporation
Either S-Corp or C-Corp (S corporations are those where profits or loss
flow through to the shareholders, C corporations are taxed separately
from their owners. In the case of an LLC, the organization blends elements
of both individual and corporate structure. The LLC, like the C corporation,
has a legal existence separate and apart from the owners, and US business
code provides for owners in LLC to have their liability for corporate
debts be limited.
Not all closely-held corporations can benefit from a strict black and white
treatment as described above; it’s important to have a contact a qualified
bankruptcy attorney so you are fully aware of the circumstances for your
The Sole Proprietorship
If a business is operating as a sole proprietorship, the law does not recognize
any distinction between the corporation and the individual, though the
specifics of this portion of the code can vary by state.
In general, however, usually in this situation is the fact that due to
the close relationship of the individual to the business, a personal bankruptcy
is also considered a business bankruptcy, and in Chapter 7, the court
will regard the business as just another personal asset that may be liquidated.
The Personal Bankruptcy with Regard to LLC or Corporation Ownership
Since the law recognizes these types of companies as separate legal entities,
in the case of an individual with corporate interests of these types declares
bankruptcy, only the portion of the business ownership that can be attributed
to the bankruptcy filer is affected. The business can continue to operate,
with the debtor’s equity in the business becoming an asset in the
Homestead Exemptions in a Personal Bankruptcy
A “homestead exemption” is a legal provision that exempts an individual’s primary residence
from various legal claims, including bankruptcy in many states. This part
of the statute is why you will see many entrepreneurs, celebrities and
professional athletes have one of these exempt states as their primary
legal domicile. In some states, there is no limit on the value of the
Business Ownership Interests in a Chapter 7 Filing
In the case of liquidation bankruptcies, the net value (assets minus liabilities)
of ownership interest will be assessed by the court with all other assets
of the owner, in order to come up with another source of money available
to repay creditors. A theoretical example of this would be an individual
declaring Chapter 7 may own a business that has been valued by the the
court or trustee at a half million dollars.
If the individual also has another $500,000 in assets that can be liquidated
(cash, vehicles, property), potentially there is one million dollars in
total to satisfy creditor’s claims.
The reason that this is only a theoretical example is due to the fact that
quite often, while the court or trustee has placed a value on the business
interest, an arm’s length, ready, willing, and able buyer cannot be
located. Many small businesses have little or no value due to debt on
the books from building or operating the business.
One exception should be noted: in some jurisdictions, the bankruptcy code
allows for a “fresh start exception.” This portion of the law
may permit a business to operate going forward without the burden of debt
that was attached to the business prior to the bankruptcy filing.
Have any more questions regarding bankruptcy? Don’t hesitate to
contact us today for a free consultation.