Close/dissolve company with Debts - final T2

Hi there, I have not done a dissolution before and need guidance. The client has Alberta corporation.
B/S Assets = Inventory $8k
B/S Liabilities:-
(a) credit card debt $10,000
(b) GST payable $1k
(c) Shareholder notes payable $25k
Retained Earnings: -ve $20k

My question is …
(1) Can I close company with outstanding debts?
(2) What if the company cannot afford to pay its debts and is not viable to continue operations.?
(3) Can I treat these debts as company loss?
(3) Is director or s/h personally liable for its debts? no personal gurantees

Thanks,

In most instances the owner will have signed personal guarantees for any debt. You’ll have to look at the debt agreements. Even credit cards are usually done in such a way that the owner becomes personally liable.

Selling the inventory should be done, if possible, otherwise it would become property of the owner, at cost (even though value may be less). you could use this to write down part of the value of the amount owed to the owner.

Yes, the owner is 100% liable for the GST. If there were any payroll liabilities, it would be the same. If the owner pays this, it will increase what the company owes the shareholder.

Written off debts are gains, not losses. That’s pretty basic. By not paying something, the company gains that amount.

It’s likely the shareholder loan, if any left after adjusting entries, may be used as small business investment losses (either ABIL or Life Time Capital Gains loss; you’ll have to look into this).

My question is …
(1) Can I close company with outstanding debts?

NOT in this jurisdiction, I don’t know about Alberta

(2) What if the company cannot afford to pay its debts and is not viable to continue operations.?

HIRE a bankruptcy Trustee

(3) Can I treat these debts as company loss?

NO - NOT a loss - is a GAIN

(3) Is director or s/h personally liable for its debts?

Effectively YES in most cases, especially by legislation for the trust accounts

no personal gurantees

VERY UNLIKELY to be true

B/S: LIABILITIES
Missing from that list will be the corporation’s lawyer’s next bill, which appears inevitable;
Also the CPA’s next bill, who will be hired because of their experience in winding up corporations.
Also: The GST amount is UNDERSTATED by at least $400

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Let’s back up a step here:
The reason a corporation is “limited” goes back to the fact that its liabilities are “limited” to the assets of said corporation.

Notwithstanding that, certain debts are NOT limited to those, either by agreement (typically banks/personal g’tees) or by legislation (GST, CPP, EI, payroll remittances, unpaid wages) the responsibility of which falls to the shareholders or Directors. The latter above are Director liabilities, the former usually shareholder liabilities. Doesn’t matter if the Director(s) are active in the business or not.

Liquidate the assets, settle the third-party liabilities first. File GST returns as required, as well as any T4s etc. Close program accounts that will be unused in the future.

From a practical perspective, while final tax returns and formal corporate dissolution are technically required, neither CRA nor Alberta Registries will generally force this. They’ll whine and complain, but they rarely force the issue. Many corporations just…fade away, leaving the shareholder holding the bag for losses.

Once you have final, settled amounts, and the only liabilities remaining are those to the shareholder(s) of record, you are in a position to file a final return. There will be a Gain on Settlement of Debts (read about this), likely an ABIL for the shareholder as @johanus said and you can file a final T2 and do a formal dissolution (straightforward paperwork with a Registries Agent in Alberta).

If you do neither of the latter two, the shareholder can still claim the ABIL, although if CRA requires proof, you’ll end up having to do the T2/dissolution in the end. Having said that, the process is not difficult and I’m sure people here will be happy to assist you once you’ve done some reading and have an understanding of the rules applicable.

Reasonably good explanation of the process here as well.

Search (google or other) terms also useful:
winding up corporation alberta tax
gain on settlement of debt canada tax

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Very well said and explained.

Pat Gamborg

PAT’s OFFICE

1354 Fed Rd.

Bear River NS B0S 1B0

902-467-3358

Really? I recall from business law class (years ago) that “limited” meant the company was limited to operating in the jurisdiction it was incorporated - usually that province. Though, now with NWP and other interprovincial agreements, that limitation is less concrete.

A corporation (or any organized group with “Articles”) has always been limited by those articles as to jurisdiction and activities. One used to have to be very specific about what one’s corporation could, and could not, do…so lawyers started drafting fairly generic “Articles of Incorporation” so as to reduce the necessity of changing the Articles in the future.

{Special note for Charities: Charity Objects must be highly specific to be acceptable to CRA!}

“Limited” is all about “limited liability” …

From the Law Dictionary (which apparently uses Black’s as a source):

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Interesting. I’m not sure we are talking about the same thing, though. In my business law class, that was basically the description of a “limited liability corporation” or LLC, as opposed to an LTD.

ULC’s are sometimes confused for LLC’s, which are something completely different. LLC stands for Limited Liability Company. LLC’s are very common in the United States, but are not available for registration as a corporate legal entity in Canada.

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Did you do your law class in the USA? LLC’s are a specific type of American corporation. They have several types of corporations in the USA that are not applicable to Canada. Here, Ltd, Limited, Incorporated, Inc, Corp., and Corporation are all the same thing. And the “limited” part is exactly as @SmallBizGuy mentioned.

No, it was here in Canada - through the CGA program. The class mentioned LLCs as something common in the USA, which are similar to partnerships (and LLPs) in Canada. But, @SmallBizGuy 's link describes corporations in Great Britain. Here in Canada, all corporations (except for those few ULCs that may exist in certain provinces - I’ve never seen one myself) have the characteristic that the shareholder’s liability is “limited” to his/her investment. In my experience, when we talk about a “limited company” in Canada we are simply talking about a corporation vs a proprietorship or partnership.

Thus the main “limitation” of a “LTD” is the jurisdiction where the corporation can operate. However, I may be confusing that concept with the origin of the term “Limited Company”, which probably comes from the British legal/accounting systems, as described by @SmallBizGuy .

I agree with @SmallBizGuy 's response to @irfan, and this discussion has broadened my understanding of the term “Limited Company”. Thanks!

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Was always taught in my relevant classes during my MBA and during other courses that the “limited” part referred to liability, as you mentioned (excluding items that are given personal guarantees and those covered by legislation (payroll liabilities/GST)) including my Canadian Law classes that I’ve taken. You had weird professor.

As for jurisdiction, that is a different matter entirely, and a business operating in one province can sell to another province, but has to register interprovincially if it is opening an office/location there. For example, an Alberta or Ontario company can send goods from their home province to the other province (so long as legislation allows–some things, like alcohol, are prohibited). They must, of course, follow GST/HST and provincial sales tax rules. I’ve dealt with this many times for clients.

Risks to a corporate business owner is covered in this years Tax Update by Alan Loiselle through CPB Canada.

Here are some key words to search:

  • joint liability rule under Section 160 of the ITA
  • transfer of property as part of a divorce settlement while still indebted to CRA
  • owing GST or other corporate tax while taking dividends only

TRAINING RESOURCE

2023 Tax Tune-up Workshop
https://cpbcan.ca/events-learning/event-listings.html

SOME EXTERNAL LINKS.
Why a business owner who paid himself dividends got into trouble with the CRA
Jamie Golombek: A dividend isn’t legally considered remuneration, which can have severe implications
Author of the article:Jamie Golombek
Published Oct 20, 2022 • Last updated Oct 20, 2022 • 5 minute read

Why a business owner who paid himself dividends got into trouble with the CRA.

CRA’s Ability to Collect Taxpayer Debts From Third-Parties – Canadian Tax Lawyer Assistance
Introduction – CRA Collections Powers

July 15, 2021-- DERIVATIVE LIABILITY TAX ASSESSMENTS: A REVIEW OF RECENT DEVELOPMENTS
Published by Nicholas McIsaac
https://www.thor.ca/blog/2021/07/derivative-liability-tax-assessments-a-review-of-recent-developments/

What is the third-party tax liability under Section 160 for the transferee?

CANADIAN INCOME TAX ACT S. 160: BAD MOVES LEAD TO HUGE TAX DEBT - Ira SmithTrustee & Receiver Inc. - Brandon's Blog.

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All good, but recognize that liability to a third party (of which CRA is just one) is the major aspect of incorporation for many businesses’ shareholders.

The biggest issue for most non- or semi-involved owners in considering CRA is liability for GST and payroll taxes collected and unremitted - and many do not insist on proof of payment, or even a query at Board Meetings. Either of those activities can support a Due Diligence defence in the event of challenge.

By far and away though, the biggest liability of most insolvent corps is to third party suppliers…not CRA. And that is what shareholders care about.

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