I probably should have stuck this in the Small Business Section...but I figured it would get more eyeballls here.
I own a business. It is a C corporation. So, from what I understand, the corp is an entity unto itself.
I am the only shareholder, and I do have PG's on some of the business debt (not all). The corp also has a "tax problem". It's not my tax problem, personally at the moment - but if I dissolve the corp, it will become my tax problem in very short order.
Because of the tax issue, the corporation is insolvent (we are working with the Infernal Revenue Service - and they're actually playing nice at the moment - I'm fully willing to cooperate. Bottom line - they're right and I'm wrong).
What I'm hoping is that the TT takes one quick look at the corp - with its tax issue and decides that it's a can of worms he (or she) would rather not open. The taxes are definitely a priority claim against the corp. If the corp liquidates, there won't be enough left over after the taxes are dealt with to pay attention, much less anything else. However, if the corp continues to operate, I still get my measly salary, the IRS gets their share and everybody is happy.
Now here's the quirk.
As part of my personal tax strategy, I have a loan from the corp. Basically, my accountant said, pay yourself a regular salary with all the appropriate payroll taxes / SS / Medicare, and if you need extra money, put it into this loan account. At the end of the year, we'll reclassify it as a dividend, and zero it out. This was how I was able to keep this mountain of debt from becoming a volcano for the last eight years.
OK - this works.
Until last year. When the corp started drowning. To make a long story short, we did not zero out the loan last fiscal. There were not enough profits to do that.
So, technically, I owe the corporation over $100k. It's the biggest asset the corp has.
Now, on the good side, the loan is declared in the corporate minutes, I pay a set amount back toward it every pay period, and I'm charging myself interest.
What I'm wondering is if I can discharge in BK, this loan (essentially) to myself.
My tax lawyer (and CPA) said no, right off the bat - that the IRS will see this as income (mind you it's spread over several years, so if I eventually have to take it as income, there shouldn't be any impact on my calcuations for the means test).
The BK lawyer is still examining this issue.
My own research into case law suggests that there is a narrow window under which I might be able to discharge this.
What I'm actually trying to achieve is the preservation of the corporation. This is my only source of income (albeit a significantly reduced one - sales are down 50%, I gave up my retail space, and I'm running the damn thing out of my spare bedroom at the moment), and dissolving the corp and starting a new one has a whole host of issues, not including the fact that the tax problem will follow any new entity.
What I figure is:
1. If I can discharge my loan to the corp, then the corp becomes essentially "judgement proof". If any of my PG's decide to come after the corporation - there are no assets (and what there is, the IRS has first claim to) - there's nothing for them to get, except future earnings, and at that point, as long as the IRS is getting their money, I can dissolve the corp and start over.
2. If I can't discharge the corp loan, the corp is still somewhat judgement proof. If I can't discharge it, I can't see how I can sue myself to recover the funds (that would probably be a laugh riot in a courtroom). If the PG's come after the corp - the IRS is still in front, correct?
I'm figuring that the presence of the tax lien will discourage anyone from suing the corp.
Now that everyone's heads are spinning [insert appropriate smiley here], I'm hoping that some of the resident experts might chime in on this whole scenario.
Because, quite frankly, my head is about to explode. [insert appropriate smiley].
I own a business. It is a C corporation. So, from what I understand, the corp is an entity unto itself.
I am the only shareholder, and I do have PG's on some of the business debt (not all). The corp also has a "tax problem". It's not my tax problem, personally at the moment - but if I dissolve the corp, it will become my tax problem in very short order.
Because of the tax issue, the corporation is insolvent (we are working with the Infernal Revenue Service - and they're actually playing nice at the moment - I'm fully willing to cooperate. Bottom line - they're right and I'm wrong).
What I'm hoping is that the TT takes one quick look at the corp - with its tax issue and decides that it's a can of worms he (or she) would rather not open. The taxes are definitely a priority claim against the corp. If the corp liquidates, there won't be enough left over after the taxes are dealt with to pay attention, much less anything else. However, if the corp continues to operate, I still get my measly salary, the IRS gets their share and everybody is happy.
Now here's the quirk.
As part of my personal tax strategy, I have a loan from the corp. Basically, my accountant said, pay yourself a regular salary with all the appropriate payroll taxes / SS / Medicare, and if you need extra money, put it into this loan account. At the end of the year, we'll reclassify it as a dividend, and zero it out. This was how I was able to keep this mountain of debt from becoming a volcano for the last eight years.
OK - this works.
Until last year. When the corp started drowning. To make a long story short, we did not zero out the loan last fiscal. There were not enough profits to do that.
So, technically, I owe the corporation over $100k. It's the biggest asset the corp has.
Now, on the good side, the loan is declared in the corporate minutes, I pay a set amount back toward it every pay period, and I'm charging myself interest.
What I'm wondering is if I can discharge in BK, this loan (essentially) to myself.
My tax lawyer (and CPA) said no, right off the bat - that the IRS will see this as income (mind you it's spread over several years, so if I eventually have to take it as income, there shouldn't be any impact on my calcuations for the means test).
The BK lawyer is still examining this issue.
My own research into case law suggests that there is a narrow window under which I might be able to discharge this.
What I'm actually trying to achieve is the preservation of the corporation. This is my only source of income (albeit a significantly reduced one - sales are down 50%, I gave up my retail space, and I'm running the damn thing out of my spare bedroom at the moment), and dissolving the corp and starting a new one has a whole host of issues, not including the fact that the tax problem will follow any new entity.
What I figure is:
1. If I can discharge my loan to the corp, then the corp becomes essentially "judgement proof". If any of my PG's decide to come after the corporation - there are no assets (and what there is, the IRS has first claim to) - there's nothing for them to get, except future earnings, and at that point, as long as the IRS is getting their money, I can dissolve the corp and start over.
2. If I can't discharge the corp loan, the corp is still somewhat judgement proof. If I can't discharge it, I can't see how I can sue myself to recover the funds (that would probably be a laugh riot in a courtroom). If the PG's come after the corp - the IRS is still in front, correct?
I'm figuring that the presence of the tax lien will discourage anyone from suing the corp.
Now that everyone's heads are spinning [insert appropriate smiley here], I'm hoping that some of the resident experts might chime in on this whole scenario.
Because, quite frankly, my head is about to explode. [insert appropriate smiley].
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