Can a director sell an insolvent company?

insolvency practitioners in meeting

One of the current frequently asked questions PBC are receiving at the moment is whether a director can sell their company when it is insolvent. There are several factors which affect the answer, including those discussed below.

Normally such a sale will involve the transfer of the business and assets of the company to a new entity but occasionally the directors will be able to secure a sale of the shares where the purchaser inherits all the debts of the company. Whilst these sales are unlikely if the company is insolvent, a director should establish whether such a possibility exists in the first instance.

While a share sale is invariably more ideal for creditors, in the majority of cases a sale will only involve the business and assets. Here, directors need to ensure the assets are sold at a fair value and therefore we would always advise that an independent, professional agent is engaged to undertake such a valuation and are likely to provide some guidance on how to sell the business and assets with minimum criticism of the directors. Failure to get this correct may result in claims being brought against the directors at a later date, so it is important.

A further complication are the provisions about the re-use of a prohibited name which apply when a company enters into insolvent liquidation. These state that an individual who has acted as director in the twelve months prior to liquidation cannot be involved in the “promotion, formation or management” of a company or business with a similar name to that of the company which entered into liquidation. The rules also extend to cover trading names and branding. Any individual in breach of these rules is committing a criminal offence and faces the prospect of personal liability for the debts of the successor business.

The sale of business and assets of an insolvent company can be the proverbial minefield, combining values, director duties and creditor interests. At PBC we can assist with this process to ensure you do not tread on any of those mines.

If you require any advice or assistance on any insolvency-related issue, then please contact PBC Business Recovery & Insolvency to discuss and advise on your situation at our offices in Northampton (01604 212150) and Milton Keynes (01908 488653) or email to enquiries@pbcbusinessrecovery.co.uk. Alternatively, visit www.pbcbusinessrecovery.co.uk for further information.

Don’t miss the early warning signs- take advice!

Life is full of those “Where were you?” moments from the death of Princess Diana to the fall of the Berlin Wall.  Insolvency is similar with the announcement of big companies entering into insolvency and one of the most recent was Carillion in January 2018 (This writer was at a breakfast in the Premier Inn, Leeds City Centre when the news broke).

The Carillion story took its latest twist over the weekend with the news the company’s former auditors, KPMG, had reached an undisclosed settlement against the £1.3bn lawsuit launched by the Official Receiver.  The claim focused on audits between 2014 and 2016 and alleged KPMG did not spot various “red flags” as it audited Carillion’s accounts. The firm was paid £29m to audit Carillion over 19 years and signed off the final audit nine months before the liquidation.

When the claim was issued, KPMG said that Carillion’s board and management were solely responsible for the failure as they set the strategy and ran operations and that the lawsuit was “without merit”.  KPMG’s have now issued a statement saying: “I am pleased that we have been able to resolve this claim. Carillion was an extreme and serious corporate failure, and it is important that we all learn the lessons from its collapse”.  When you consider KPMG were also fined £14.4 million by the regulatory body on this matter, these are wise words that ought to be considered by all advisors.

However, the lessons apply not just to professional advisors but to directors as well.  Missing the early warning signs or “red flags” can result in an increased risk of financial problems.  At PBC we strongly encourage directors of companies in or facing financial distress to take advice at an early stage.

If you require any advice or assistance on any insolvency-related issue, then please contact PBC Business Recovery & Insolvency on 01604 212150 or email to enquiries@pbcbusinessrecovery.co.uk.  Alternatively, visit www.pbcbusinessrecovery.co.uk for further information.

Paying less tax!

kalkulation am rechner

calculator

Business Asset Disposal Relief (“BADR”) – (in old money known as Entrepreneurs’ Relief) may be available to company shareholders who wish to wind-up their solvent company via a Members’Voluntary Liquidation (“MVL”) process.  This is a long-standing method to reduce the standard capital gains tax paid to a rate of 10%.  At PBC we advise and formally act in MVL’s to assist business owners to maximise their return(and pay less tax) in conjunction with the company’s accountants.

There is always speculation pre budget that BADR will either be scrapped or reduced – the most recent reduction was in the March 2020 budget which changed the lifetime relief capped from £10 million to £1million.  Since then, BADR has not been changed.  However, given the level of Government support since Covid, is BADR an easy target for further scrutiny?

The next budget is scheduled for 15 March 2023 and, whilst the view is BADR will not be scrapped altogether, it may be that further reductions/restrictions could be in the offing.

If you are a company owner or advisor to the company and wish to discuss an MVL in more detail, please call PBC on 01604 212150 or email enquiries@pbcbusinessrecovery.co.uk.

You must be busy……?

 

Whilst it is well reported that insolvency numbers are on the rise and likely to continue given the current economic difficulties, the above is a question frequently asked of us here at PBC Business Recovery & Insolvency.

 

The answer to the question from our perspective is, yes, we are. However, busy is not always gauged by the number of formal appointments we undertake. Undoubtedly, formal appointments help pay the bills but from our perspective “busy” is generally based on the amount of advice being sought when financial difficulties are experienced. To this end, yes, we are busy, but busy looking to help companies and individuals avoid formal insolvency processes and to fight another day. Of course, some companies are unable to be saved and it is appropriate that the doors be closed once and for all, but this is not for a want of trying, on our part, and those we advise.

 

If financial problems are being experienced or, indeed, they appear to be on the horizon, then take advice early from PBC. The adage of  ‘a problem shared is a problem halved’ is generally very true – at PBC we are just at the end of a phone or email if needed – 01604 212150 or email enquiries@pbcbusinessrecovery.co.uk.

 

The initial meeting is always free of charge, confidential, no obligation and impartial, with the appropriate advice given.

 

Help is out there

It would be wrong to imply HMRC simply agree to TTP upon application. PBC Business recovery and insolvency practitioner

According to HM Revenue & Customs, as at 3 January 2023 almost half (5.7 million) of the 12 million individuals expected to file a tax return are yet to do so.  At the corresponding time in 2022 that figure stood at some 4 million.

HMRC have made it clear the forgiveness for late filing shall not apply in 2023 so many could face an initial £100 fine.  That fine can increase for continued non-filing.

No doubt there will be many reasons for late filing but one of those is likely to be a fear the taxpayer will be unable to pay the liability arising.  Burying your head in the sand is no solution.  Indeed, it can become a large and costly problem.

Contrary to belief, HMRC will look at assisting a taxpayer where affordability is an issue, especially now when the cost of living issues are taking hold of the Country.

Should you find yourself in a position where you cannot afford to pay your tax liability by the due date then HMRC will consider a time to pay agreement (“TTP”) that permits you to spread the payment over a period not exceeding 12 months.  If you owe less than £30,000 you can follow this link:

https://www.tax.service.gov.uk/pay-what-you-owe-in-instalments?_

The principal criteria for a TTP are that you:

  • have applied for a TTP within 60 days of the payment deadline.
  • have filed your 2020 to 2021 tax return
  • owe £30,000 or less
  • have no other tax debts
  • have no other HMRC payment plans set up

It would be wrong to imply HMRC simply agree to TTP upon application.  Firstly, HMRC have no obligation to agree, and consideration is likely to include the above criteria, together with a review of your compliance history.  Should the tax liability be over £30,000 you are encouraged to telephone HMRC to discuss a TTP.  PBC are happy to advise anyone with debts owed to HMRC, whether as your only creditor or as part of a wider financial matter.

If you require any advice or assistance on any insolvency-related issue, then please contact PBC Business Recovery & Insolvency to discuss and advise on your situation on 01604 212150 or email to enquiries@pbcbusinessrecovery.co.uk.  Alternatively, visit www.pbcbusinessrecovery.co.uk for further information.

Interim Dividend Declared

The approach taken by PBC on this case has avoided the company being wound up by the court, the increased level of costs associated with this process. business insolvency northampton and bedford

PBC are delighted to announce the payment of a significant interim dividend amounting to £500,000 to HM Revenue & Customs from an insolvency estate.  Following our advice, the Northampton based company was placed into creditors’ voluntary liquidation in August 2022 and a commercial approach adopted with regards to asset disposals.  Combined with further assets to realise additional payments will be made to creditors in the future.

 

Jamie Cochrane, who is dealing with the liquidation, said, “It is always pleasing to be able to return monies to creditors, albeit solely HMRC at this stage.  The approach taken by PBC on this case has avoided the company being wound up by the court, the increased level of costs associated with this process and allowed us to address asset realisations in an orderly manner, resulting in enhanced values.  All of which will lead to a higher return to creditors”.

 

If you require any advice or assistance on any insolvency-related issue, then please contact PBC Business Recovery & Insolvency to discuss and advise on your situation on 01604 212150 or email to enquiries@pbcbusinessrecovery.co.uk.  Alternatively, visit www.pbcbusinessrecovery.co.uk for further information.

 

New Year – time to plan but…………

It has been recently reported many differing businesses are finding it extremely difficult to plan due to the uncertainty whether government support to businesses for their energy costs will be extended beyond March 2023.

 

Most business owners would ideally like to have at least a 3-6 month cash-flow buffer to work towards and the government’s failure to provide clarity on energy costs beyond March 2023 is of significant concern to many.  According to the Federation of Small Business one in four small firms expect to either close, downsize or radically change their business model if the energy support dries up after March.  https://www.bbc.co.uk/news/business-64151979

 

At PBC Business Recovery and Insolvency we always urge business owners, if concerned about the businesses financial future to seek early advice.

 

If you require any advice or assistance on financial concerns, then please do contact PBC Business Recovery & Insolvency on 01604 212150 or email to enquiries@pbcbusinessrecovery.co.uk and we will be more than happy to help.

 

 

PBC World Cup sweepstake money goes to charity!

 

We hope you all enjoyed the exciting World Cup final last night.  PBC are pleased to announce that the total winnings of £55 from our office sweepstake will be going to Gemma Dearsley at the Lighthouse Centre who was lucky enough to draw both Argentina and France!

 

PBC also have 2 charity events already planned for next year to help raise more money for this very worthwhile cause.  Details to follow shortly!

 

 

 

What is desire?

 

A common question directors of an insolvent company ask is along the lines of can I pay a particular creditor in full before the company is wound up?  Usually, that creditor is related or associated in some way to the director, or there may be a personal guarantee attached to the debt.

 

 

In short, the answer is invariably “No” as that may constitute a preference.  As a quick point, a preference is where, “The company does anything or suffers anything to be done” and that action puts the creditor in a better position than creditors as a whole.

 

The key principles surrounding a preference are:

 

  1. Where the benefitting creditor is not associated in any way then it is for the liquidator to prove there was a desire to place a creditor in a better position.  If the party is connected in any manner, then desire is presumed, unless it can be rebutted.

 

  1. Did the giving of the preference render the company insolvent or was the company already insolvent?

 

These key principles were tested in two separate court cases this year, with differing outcomes arising based upon the individual facts.

 

In the first of these, Carton-Kelly -v- Darty [2022] EWHC 2873 (Ch) the repayment of an intra-company debt of £115 million was deemed a preference.  The defence primarily swung on the argument the company was balance sheet solvent, mainly as a result of a material deferred tax asset.  However, the court disagreed as these allowances were only available if future profits were to arise and, given the company had ceased trading, that prospect was never going occur.

 

In upholding the liquidator’s claim the court cited, “the purpose of [the preference provisions] is to prevent a company defeating or undermining the pari passu principle.” [sic].  In other words, you must ensure creditors as a whole are treated fairly and equally.

 

The second case was Manolete Partners PLC -v- Coleman and Ors [2022] EWCH 2644 (Ch) where the court took a differing view.  Mr Coleman had repaid his loan account and argued a sale of the business had been agreed where the combination of sale proceeds and debtor receipts would have paid all known creditors.  Insolvent liquidation was never contemplated.  Indeed, the only criticism against his defence was the fact he paid himself in full immediately, whereas other creditors would need to wait until sufficient funds were received.

 

As it happens, liabilities were substantially higher than Mr Coleman understood to be the case and the company was insolvent.

 

In considering the facts, the court accepted Mr Coleman’s genuine belief all creditors would be paid in full and the presumption of “Desire” had been rebutted.  Accordingly, the case against him was dismissed.

 

The message we can take from these two cases is whether a transaction is a preference, or not, will very much depend on all surrounding facts at the time.

 

If you require any advice or assistance on any insolvency-related issue, then please contact PBC Business Recovery & Insolvency to discuss and advise on your situation on 01604 212150 or email to enquiries@pbcbusinessrecovery.co.uk.  Alternatively, visit www.pbcbusinessrecovery.co.uk for further information.

Avoiding Insolvency – recent successful case studies

 

In our recent blog entitled “What is it you want to do?” (https://www.pbcbusinessrecovery.co.uk/what-is-it-you-want-to-do/), we outlined how PBC ensure anybody receiving advice is presented with all the options available to them.

 

In a recent case, PBC were approached by two directors who were being pursued by the liquidator of their company in relation to loans due from associated companies of £1.4million.  After taking time to understand the overall picture, we corresponded with the liquidator, making an informed  offer of £300,000 payable over three years with no personal guarantees or other security being needed.  This offer was accepted.

 

In another example, PBC acted for an individual who owned various properties, some of which had been sold, leaving a shortfall of over £200,000 owed to the mortgage company.  The individual also owned further mortgaged properties with  the same mortgagee and was he looking for a solution which avoided an insolvency outcome.  Following negotiations with the solicitors acting for the mortgagee, a settlement below £100,000 was agreed.

 

In both cases, formal insolvency procedures were avoided which secured mutually suitable outcomes.  The headwinds from the Courts are that mediation is a necessary process and indeed one which may become compulsory and as can be seen from the examples above, one which can provide successful resolution to matters.

 

If you require advice or assistance on any insolvency-related issue or with mediation, then please contact PBC Business Recovery & Insolvency to discuss and advise on your situation on 01604 212150 or email to enquiries@pbcbusinessrecovery.co.uk. Alternatively, visit www.pbcbusinessrecovery.co.uk for further information.