My company is in financial difficulties, what are my obligations?
Where a company cannot meet its debts as and when they fall due it is regarded as insolvent. The directors need to take action. It may be possible to re-finance the Company or put forward an informal or formal arrangement to its creditors. If however none of these are feasible, then the directors must take steps to cease trading and stop incurring any further credit. All directors have an obligation to make sure that the position does not deteriorate further. Once a Company is insolvent, the directors’ primary duty is to protect the interest of creditors – not the directors or shareholders.
Can the Company continue to trade up until the date of the meeting of creditors?
In most cases, once the decision has been made to put the Company into liquidation, the directors should cease trading. There are exceptions. In some instances, where there are contracts to finish off, or it will aid the collection of book debts, the business may continue. However, directors have to be very careful to make sure that no further credit is taken. They should seek advice from a licensed Insolvency Practitioner.
Who is in control of the Company once a meeting of creditors has been called?
The directors retain control of the business until a Liquidator is appointed.
Will the directors be allowed to buy the business or assets of the Company from the Liquidator?
The Liquidator is under a duty to obtain the best price that he can for the assets of the Company. He will usually obtain a valuation of these from a professional valuer. If the directors’ offer is the best offer he receives, then the assets can usually be sold to the directors.
Are the directors liable for the debts of the Company?
No. The Company is a separate legal entity and contracts with people or companies in its own right. Unless a director has acted outside of his authority, or has given personal guarantees, that director will not as a rule be liable for the debts of the Company.
Will I still be allowed to be a Company director?
Even if a company goes into liquidation you can continue to be a company director unless you are subsequently disqualified or are made bankrupt.
Is there any way in which I can become personally liable for monies to the Company or its Liquidator?
Yes. If you as a director have acted outside your powers or contrary to the Insolvency Act or the Companies Act. Directors can become personally liable for the increase in the amount of debts owed by the Company from the time a court decides they should have ceased trading, to the time when they actually did cease to trade. This is called ‘Wrongful Trading.’ It is for this reason that we always stress to directors that once a Company is insolvent, with little or no prospect of recovery, it should stop taking any further credit immediately.
The Company owes the Inland Revenue substantial sums. Can they come after me for that?
The Inland Revenue have the power under the 1998 Social Security Act to issue a Personal Liability Notice against any officer of the Company for any unpaid NIC. There must be neglect to pay or fraud on the part of the Company’s officers. The Inland Revenue can pursue individual employees for unpaid PAYE where the employee concerned knew that the employer had not deducted tax.An overdrawn directors loan account can be regarded as remuneration and made subject to tax.Directors and their advisors need to be very careful to ensure adequate wage records are kept.
Who can put a Company into liquidation?
The most common form of liquidation is a creditors’ voluntary liquidation, which applies when a company is insolvent. This is instigated by the directors calling a meeting of the Company’s shareholders and its creditors. Kingsland Financial Solutions will assist you in the calling of these meetings.
What happens if the directors/shareholders cannot agree to put the Company into liquidation?
As far as the directors are concerned, once they are aware that the Company is insolvent, they are obliged to act in the best interests of the creditors. If they cannot agree as to whether or not the Company should be placed into liquidation, they run the risk of incurring personal liability for the increase in the level of debts. This liability will run from the time when a court decides they ought to have taken steps to put the Company into liquidation, to the date they actually put the Company into liquidation.As far as the shareholders are concerned, there must be more than 75% of those shareholders present [in person or by proxy] at the general meeting who resolve to place the Company into liquidation. If this cannot be agreed, it is possible for the Company to go into compulsory liquidation, by a creditor presenting a winding-up petition against the Company.
Who is Chairman at the meeting of creditors?
One of the directors is nominated as the Chairman and must attend the meeting. It is customary for the Chairman to allow a Liquidator from Kingsland Financial Solutions to deal with the running of the meeting.
What happens at the meeting of creditors?
A directors’ report will be prepared, with the assistance of Kingsland Business Recovery, which is presented to the creditors at the meeting. This contains details of the background to the Company, the reasons for its failure and statutory and financial information. Creditors will then have the opportunity of asking the director questions about the running of the Company.
What happens after a Liquidator is appointed?
The directors’ powers to control the Company cease. The Liquidator is now in charge of the Company and its assets.
What are the Liquidator’s functions?
The Liquidator’s primary functions are to protect and realise the assets of the Company for the benefit of the creditors. The Liquidator is also obliged to submit a ‘D Report’ on the conduct of the directors, to the Department of Trade and Industry ['DTI'].
What is a D Report?
Under insolvency legislation, all Liquidators are obliged to prepare a report on anyone who has been a director, or shadow director, of the Company within the three years prior to its liquidation. The DTI can prosecute directors, seeking a disqualification order from the courts, for up to 15 years, for those directors whose conduct warrants it.
Who does the Liquidator act for once appointed?
The Liquidator acts for the creditors as a whole and has certain statutory obligations which he must fulfil.
What are the directors responsibilities to the Liquidator?
The directors must co-operate with the Liquidator and hand over the assets of the Company and provide him with information. They must also attend the Liquidator’s offices, as and when reasonably required.
What happens to employees wages that are unpaid at the time of the liquidation?
There is a Government scheme which ensures that certain payments, based on statutory maximum figures, can be paid out to employees by the Department of Trade and Industry. These include unpaid wages in the four months prior to the commencement of the liquidation, statutory notice, redundancy pay and unpaid holiday pay. Currently the basis of calculations is on a statutory maximum of £380 gross per week.
Will a director also be able to claim unpaid wages and other benefits from the Government scheme?
Directors are entitled to claim these sums, if they were employees of the Company. In some instances, where a director is also the controlling shareholder, his claims may be challenged by the Department of Trade and Industry.
How do employees or directors make these claims to the Government?
Once appointed the Liquidator will send the necessary forms to all employees concerned. When these have been returned to the Liquidator’s office, they will be forwarded on to the Department of Trade and Industry. Claims usually take about six to eight weeks to be processed.
Will the Directors be personally liable for unpaid PAYE in a formal Insolvency?
The Inland Revenue have the power to issue a Personal Liability Notice against any officer of the Company for any unpaid PAYE. HMRC can issue a PLN ‘whenever contributions are unpaid because of the neglect of a culpable officer.’ While failure to pay contributions can obviously constitute neglect, in practice HMRC have only considered issuing a PLN in the most serious of cases where they will look at factors such as:
- has there been a record of persistent failure to pay over PAYE/NIC when other payments are being made as they fall due;
- has directors’ remuneration has continued to be paid during the period; and
- has the individual been involved with other companies which have failed to pay over taxes?
Will the Directors be personally liable for unpaid NIC in a formal Insolvency?
The same rules apply for unpaid National Insurance Contributions (NIC) as do for unpaid PAYE. The HMRC will have to show the directors have been negligent in someway.
What shall I do if I an unhappy with the insolvency practitioner's handling of the case?
You should first contact the administrator to try to resolve the problem. If you are still not satisfied, you may be able to make an application to court. If you think that the administrator is guilty of professional misconduct, you should contact his regulatory body.
Can a Charity be placed into Liquidation?
Yes a Charity can be placed into liquidation just like a company can. In addition to the liquidators normal duties, they will also have to submit a report to the charities commission informing them of the investigations the liquidator has carried out. The charities commission will then carry out their own investigation to understand where the money which is supposedly meant for the charity has gone.
Does an overdrawn Directors Loan Account have to be repaid in an insolvency?
Like debtors that are outstanding to the insolvent company, a directors overdrawn loan account is also seen as fund outstanding to the company. Therefore the insolvency practitioner will be required to take steps to recover the fund outstanding from the loan account from the director. This could result in the insolvency practitioner taking further action such as applying for a charge or even petitioning for the directors bankruptcy.
Can Client Funds be used to pay Liquidation Costs?
Client funds cannot be used to pay for the liquidation costs. Client funds should be held in a separate client account and the company hold these funds in trust for the client. These funds should therefore be kept separate and not used for any purposes other than for the clients needs. If client funds are used inappropriately this could result in the directors being investigated and possible further action taken against the directors including a disqualification.
I cannot afford the liquidation fee, is there another option?
Depending on the type of insolvency the costs of the procedure could be borne through the sale of the company assets or the recovery of outstanding debtors. Therefore allowing the directors to not have to large amounts of money for the insolvency practitioners fees. However in most cases the assets do not cover the costs of the insolvency and therefore the directors will need to pay for the fees.