By Attorney Edward Jesson
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Whether good or bad, it is sometimes necessary to dissolve a corporation or limited liability company (“LLC”). If the business has no assets or liabilities, then closing down is relatively simple. However, business owners can get into trouble when they attempt to close down their businesses if it has remaining assets and liabilities. It is recommended that they work with an attorney. There are some subtle differences between dissolving an LLC and a corporation, but we are just going to use a corporation as an example below.

The first step in voluntarily closing a business in North Carolina is to file the articles of dissolution with the Secretary of State. Once the articles of dissolution are filed, the corporation still must adhere to its bylaws with regards to its directors and shareholders. However, the corporation is no longer allowed to carry on its normal business and must only do things in furtherance of winding up its affairs and liquidating. The North Carolina Business Corporation Act specifically states that a business may:

• Collect its assets;
• Dispose of property not to be distributed to shareholders;
• Discharge its liabilities;
• Distribute the remaining property to shareholders; and,
• Do any other act necessary to wind up and liquidate.

Any act further than those necessary to wind up and liquidate may invalidate the dissolution, which could have potential liability ramifications at a later date.

The next step in the process is liquidation. During this process, the owners of the business are responsible for selling assets and for settling the corporation’s debts. In the North Carolina Business Corporations Act, there are notice and publication procedures that a corporation can use to give notice of its dissolution or liquidation to creditors or potential creditors. While the Act does not impose any legal requirement to do so, it is beneficial for businesses to follow this procedure because it starts a clock and establishes deadlines within which creditors must bring claims.
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The potential claims against a corporation fall into two main camps: known claims and unknown claims. If a corporation sends written notice of its dissolution to known creditors, it can establish a claims due date of 120 days from the date of the notice. If the claim is not made by that deadline, the claim will be considered time barred. For unknown claims, a corporation must publish, among other things, notice of its dissolution in a newspaper in the county where the dissolved corporation has its principal office. This will start a five-year clock for unknown claims.

Generally, when liquidating a corporation, all assets of the corporation will be distributed to any creditors first and then to the shareholders. If the assets are not properly distributed (e.g. if a shareholder received assets instead of a creditor), then the aggrieved creditor could potentially file a lawsuit against the shareholder and against the directors who authorized the distribution.

As you can see, closing down a business can be a minefield for all involved. The attorneys at Jesson & Rains can help you close down your corporation or LLC properly or help you figure out alternatives to closing down your business.

By Attorney Kelly Rains Jesson and Associate Attorney Danielle Nodar

​Forming a corporation in the state of North Carolina is pretty easy to do yourself, but that may get business owners into trouble.  Numerous corporations exist without any bylaws and without issuing any shares (especially those who do-it-themselves).  Failing to complete all the steps can have negative consequences. 
 
A corporation is owned by its shareholders.  Shortly after a business is incorporated, it should issue shares to the owner(s).  If there are no shares issued, there are no shareholders, and thus no owners.  Why do so many business owners fail to complete this step?  Probably for two reasons: (1) they don’t know this is the way it works and (2) in order to incorporate, all the Secretary of State’s office requires is that Articles of Incorporation be filed with its office.  It does not require proof of bylaws or shares.
 
Shareholders do not manage the business just because they are shareholders. The Board of Directors manages the business.  For small, family businesses, the shareholders and the directors are often the same people.  However, these are still two distinct roles.  Most business owners that have not issued themselves shares are simply acting like directors of the corporation. 
 
To incorporate, the incorporator (could be a future director, shareholder, or third party, like an attorney) files Articles of Incorporation.  North Carolina law states that if no directors are named in the Articles of Incorporation, the incorporator shall hold a “meeting” (can be informal) to name the initial directors.  “The incorporators or board of directors of a corporation shall adopt initial bylaws for the corporation.” N.C.G.S. § 55-2-06 (emphasis added). The law states that there SHALL be bylaws, not that there MAY be bylaws.  The bylaws govern the management and affairs of the corporation. The bylaws state how shares will be issued, how directors will be named/replaced, and how the company is managed. 
 
So why should you care?
 
First, the liability protection corporation owners enjoy is at risk if you do not follow the corporate formalities required by North Carolina law. You risk having a creditor ask a court to “pierce the corporate veil,” making you personally liable for debts and judgments of the corporation. When a court “pierces the corporate veil,” it determines that the corporation and owner are basically the same, with the corporation serving as merely a shell for the owner to act. If this finding occurs, your personal assets can be used to satisfy corporate debts, which defeats one of main purposes of owning a corporation in the first place.
 
Second, you will probably not be able to obtain an SBA loan if you do not have bylaws.  These loans are backed by government guarantees.  The government wants to make sure it is not lending to an entity that has not been set up properly. The SBA wants to make sure the bylaws do not contain provisions that make the loan risky.
 
Finally, another reason why we talk to our clients about shares and bylaws is for estate planning purposes.  When a person passes away, they leave their property to beneficiaries.  Shares of corporations are personal property.  If a business owner has not issued himself or herself shares of the corporation, what is there to pass to their beneficiaries? 
 
Further, as we explained above, corporations are managed by the board of directors and not the shareholders.  Therefore, even if a shareholder owner passes their shares to their beneficiaries, that does not mean that the beneficiary now suddenly starts managing the company as a new director.  If you are the sole director of your corporation, who will take over management when you pass away or are sick?  The bylaws of a corporation will govern what happens when a director passes away or otherwise becomes unable to act.
 
We can do some pretty creative estate planning with owners of corporations.  We can help them restrict management or ownership of shares to family members.  We can ensure that their shares stay out of probate through using trusts, saving their families money.
 
For assistance with drafting bylaws, issuing shares, and implementing an estate plan, give Jesson & Rains a call!

The privilege license tax is a tax levied on the privilege of conducting a particular trade or business.  If you are a professional that is licensed by a board, you most likely should be paying state privilege license tax every year (for example, accounts, attorneys, general contractors, realtors).  There are some exceptions to this requirement, like professionals working for the government or non-practicing physicians, to name a couple.

However, there are some surprising professions on this list; most notably, photographers.

A list of applicable professions can be found here:
https://files.nc.gov/ncdor/documents/files/instructions_b202a_application_for_state_privilege_license_2-18_web_v3_final_3.pdf

And the license application can be found here:
https://files.nc.gov/ncdor/documents/files/webfill_version_b202a_application_for_state_privilege_license.pdf

The license is issued to the individual and not the business.  While the individual can go ahead and form his/her business, the license should be applied for before beginning business.  It is unlawful to engage in business without obtaining a required privilege license. The penalty for failure to obtain a license is the greater of five dollars ($5) or five percent (5%) of the amount prescribed for the license per month or fraction thereof from the time the amount is due until the amount is paid, up to a maximum not to exceed twenty-five percent (25%).

The privilege license tax is annual and is due by July 1 of each year. The penalty for failure to pay any tax when due is ten percent (10%) of the tax due.

Because the license is issued to the individual and not the business, if an individual is engaged in more than one business, he/she will have to obtain a privilege license for each business.  If you are a licensed psychologist who has a photography business on the side, you must obtain two privilege licenses and pay two taxes, for example.  The license must be displayed conspicuously at the location of the licensed business, trade, or profession.

If you have questions about the privilege tax, please give us a call!

Have you heard of a B-Corp yet?  B-Corp is short for "Benefit Corporation."  A Benefit Corporation is a type of for-profit business structure.  For-profit business structures, by definition, have profit as a legally defined goal.  In addition to profit as a legally defined goal, Benefit Corporations include an additional goal: a positive impact on society, workers, the community and the environment.  In other words, in addition to considering profit for their shareholders in their decision-making process, Benefit Corporations have an obligation to consider the impact on society and the environment.  

States within the United States first started passing Benefit Corporation legislation in 2010.  Benefit Corporations are currently a valid form of business structure in 33 states plus the District of Columbia and many other countries.  Although North Carolina is not one of the 33 states in the United States that has designated Benefit Corporations as a legal form of business, the state is currently considering legislation to do so. 

Even though Benefit Corporation structure doesn’t officially yet exist in North Carolina, businesses in North Carolina can still acquire their “B Corporation certification.”  A B Corporation certification, also known as B-Lab certification, is a private certification issued to for-profit corporations by B Lab, a global non-profit organization.  In order to obtain B-Lab certification a business must meet certain criteria for social and environmental performance.  Although B-Lab certification has no legislative framework (and therefore has no legal status), Certified B-Lab companies are eligible for discounts from outside entities and fellow members.  In addition, B-Lab certification is not necessary to obtain Benefit Corporation status.

North Carolina currently has 37 companies that have obtained their B Corporation certification by B Lab. If you are interested in obtaining your B Corporation certification or forming a Benefit Corporation, contact Jesson & Rains.

Contribution by Cyrena Ivie, of Jesson & Rains, LLP

We have had clients contact us who are interested in forming several LLCs for liability protection but then have heard that it is a good idea to form a “holding company” to then own these LLCs under one umbrella.
 
Traditionally, holding companies are corporations that own stock in other corporations, and all they do is collect dividends from the stock.  Berkshire Hathaway is the most famous holding company. It owns stock in many notable companies.  It’s beneficial for the holding company to own a majority amount of stock, too, for control and tax purposes.  Holding companies are a way for investors to buy shares of companies and make money by receiving dividends for doing nothing but investing.  The owners of Berkshire Hathaway (its shareholders) don’t run any of the companies it owns.  The board and officers of Berkshire Hathaway (including Warren Buffet) don’t run any of the companies Berkshire Hathaway owns.  Of course, if Berkshire Hathaway owns a controlling amount of stock, it could vote to replace the board if the subsidiary wasn’t doing well.
 
Nowadays, people are forming “holding companies” for other purposes.  Modern holding companies are really used as a tool for liability protection.  If you form one LLC to own or “hold” the real estate, you can form a second LLC to operate / manage the properties.  That way, if one LLC gets sued, the property of the other is not up for grabs.  For example, if someone sues the property management company and it has to file bankruptcy, the building is safe because it is owned by the other LLC and its owners (also the owners of the operating LLC) can form another operating LLC immediately. 
 
We think it is a great idea to form multiple LLCs.  The more segmented and specific you can get it, the more liability protection there is.  However, with each new LLC, there are additional costs: formation fees, annual report fees, and accounting fees. 
 
Some people think that there is a benefit to having a parent LLC own multiple LLCs.  So, in our example above, Real Estate Enterprises LLC would own the property holding LLC and the operating LLC.  Again, creating a parent company for the purposes of simply “holding” the separate LLCs is an added expense without much of a benefit.  There’s no increased liability protection forming a parent company.  Each LLC has to file annual reports and tax returns each year, so consolidating isn’t making that easier.  There is possibly an extra layer of management, too (management of the subsidiary and management of the parent) that may be unnecessary.  
 
For investment purposes, though, there may be some benefit.  The subsidiary LLCs are assets on the parent company’s books.  There are also some estate planning benefits.  Instead of having the deceased’s ownership interest pass to the heirs for 12 different companies, the parent LLC’s interest could pass to the heirs and they would automatically own all the subsidiary LLCs.
 
With any business formation, it is important to contact a business planning attorney and a reputable CPA.

The number one reason why we recommend individuals form businesses instead of operating as a sole proprietor or partner is for liability protection.   Generally, a member of an LLC or an owner of a corporation will not be personally responsible for the debts and liabilities of the business.
 
Exceptions:
 
1) If the member or owner signs a personal guarantee.   It is very common for banks and landlords to require new business owners to sign a guarantee which “guarantees” the bank or landlord that if the business is unable to pay back the loan or pay the rent, the member/owner will pay personally.
 
2) If the member or owner is personally negligent. A member/owner can be held personally liable for his own careless actions if he injures someone while operating the business. Professionals can be held personally liable for their own malpractice.  This is why we also recommend getting commercial liability insurance.  A member/owner can also be held personally liable for conduct occurring outside the scope of employment.

3) If a court “pierces the corporate veil,” meaning the LLC or corporation was merely a shell for the member/owner to carry out his wrongdoing and served no legitimate business purpose.  Three elements must be satisfied before a court will hold the member/owner personally liable:

• Control, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practice with respect to the transaction attacked so that the corporate entity at the time no separate mind, will or existence of its own; and
• Such control must have been used by the member/owner to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest and unjust act in contravention of a plaintiff's legal rights; and
• The aforesaid control and breach of duty must have caused the injury or unjust loss.  Green v. Freeman, 367 N.C. 136, 145-146 (2013).

Because member/owner liability is limited, and not absolute, Jesson & Rains consults with its business clients to help minimize as much risk as possible.  Please give us a call if you would like to discuss your risk avoidance strategy.