CHAPTER XXVIII

LIQUIDATION OF A CORPORATION Reasons for Liquidating—Partial and Complete Liquidation There are a number of ways in which a corporation may cease to exist and a liquidation take place. The charter, if created for a fixed number of years, may expire. The state may see fit to repeal the charter in accordance with the right reserved at the time it was granted. The corporation may of its own accord surrender its charter; or the courts may decide that the corporation has forfeited its charter rights by reason of non-performance or because of some wrongful act. Failure to pay taxes due the state is an instance. The liquidation of a corporation may take place because of a consolidation resulting in loss of its original identity. In the case of a merger the merged corporation ceases to exist under the terms of the agreement made which may call for a more or less complete liquidation. Sometimes a reorganization effects the liquidation of an insolvent corporation. If the new corporation obtains the assets of the previous corporation under a forced sale, the money received would be applied to the satisfaction of the old creditors’ claims. Insolvency is the most usual reason for liquidating a corporation. Insolvency may be either actual or legal. By the National Bankruptcy Act insolvency is defined as the condition in which the assets of a person, firm, or corporation are less than the debts. This definition emphasizes the economic point of view. A corporation is legally insolvent when the cash assets are not sufficient to pay debts when they become due. Either of these conditions may exist without necessarily disastrous results, though it generally leads to disaster sooner or later. However, the fact that these conditions do exist indicates that the business in question is not well managed. It is well, therefore, to bring out the more prevalent causes leading to insolvency. Current Assets Transferred into Fixed Assets A common cause of insolvency is the tying up of current assets in plant and equipment. While this may be the actual cause, the post-mortem assigns the cause generally to lack of “working capital.” When a business expands and orders are coming in in excess of the facilities at hand, there is a great temptation to put a large part of the incoming funds into plant in order to take full advantage of the opportunities in sight. The result is that eventually the point is reached where it is impossible to get the cash necessary to meet maturing obligations. While the need for plant and equipment may justify the outlay, they cannot readily be converted into cash for they are usually of such a special nature as to be of small value without the organization. Tying up Cash in Stocks of Material The conversion of the cash resources of a company into stocks of material is another cause of insolvency, especially if the turnover is slow or the business is of such a nature as to require large sums invested in materials. Though capital in this form is generally being converted into cash or other forms of working capital, the fact that large sums are invested in material does not always mean that its cash value measures the amount of working capital. On the liability side of the balance sheet there may be items such as short-time loans or accounts payable which must be deducted in order to determine the net working capital. If the stock carried is disproportionate to requirements, it is a sign of poor management. When this state of affairs is allowed to continue for some time, the chances are that stocks will become obsolete or deteriorate, resulting in a loss. This will eventually result in the accumulation of current liabilities or floating debts and so bring about a condition of insolvency. Unwise Use of Cash for Paying Dividends Dividends are sometimes paid at a rate entirely out of proportion to average earnings, or a rate is maintained that is at variance with current earnings. Profits depend to a large extent upon economic and financial conditions. Business does not move on an even level throughout the years. The rule with conservative corporations is that dividends must not be allowed to rise, even in most prosperous periods, above a conservative estimate of the average earnings. In periods of prosperity the demand on the cash resources of a business increases as the prices of material, labor, and money rise. The result is that while a company may make large profits it may not be in a position to pay more than the usual rate of dividends. Many a corporation after paying big dividends in prosperous times has ended by placing its affairs in the hands of its creditors. Dividend payments are dependent not only upon profits but to a greater extent upon the concern’s cash position. To endeavor to do a large volume of business with a small working capital is generally a sure and a quick way of landing in bankruptcy. The prudent way is to withhold dividends until in the normal course of events cash is accumulated beyond the requirements of the business. The book surplus must be reinforced by a satisfactory cash balance as a basis for the declaration of cash dividends. Sometimes corporations may find it sound practice to pay dividends with the proceeds of temporary bank loans. This is not open to objection under certain circumstances. For example, the company’s business may be subject to wide seasonal fluctuations’ or it may be of such a nature that it nominally operates with a small working capital. Even in these cases the assumption must be that the loans can be repaid when due without any undue strain or effort. There is some question regarding the soundness of the practice, sometimes resorted to, of issuing long-term obligations or of selling additional stock for the purpose of obtaining cash to pay dividends. If the profits are extraordinarily large and the probabilities are that they will remain so, then the increased capitalization may not be a serious handicap in itself. However, where the surplus shown on the books is fictitious or when a legitimate showing of profits cannot be made, then such a transaction would clearly be fraudulent. Inability to Secure Cash for Refunding Operations Corporations sometimes issue bonds because of the fact that a larger return is gained to the stockholders than if more stock were sold. The interest rate on bonds is generally much less than the rate of profits and even less than on short-term loans or notes. The distinction between bonds and notes is mainly that of time. The proceeds from the bonds are commonly used for permanent improvements, while the notes are issued to bridge over the changing of some form of quick assets into cash. Generally the bonds are issued during a period of easy money but they may mature when the money market is hard. If a sinking fund has been provided, all that is necessary is to convert the securities in which the funds have been invested into cash and take up the bonds. But the fact that the returns on the securities in the sinking fund are as a rule much less than can be realized by placing the money in betterments, operates against its use. When, therefore, the bond issue becomes due in a period of financial stringency, or even during normal times if the business has not been highly successful or if its credit has been impaired, the company may be unable to liquidate its assets and pay it off. The consequence is that a foreclosure of the mortgaged property is made. Excessive Borrowing on Short-Term Securities A frequent cause of insolvency is excessive borrowing by means of short-term securities in the form of accounts payable, acceptances, and notes. The notes may be classified into: (1) notes discounted at some bank; (2) notes sold to the public; and (3) merchandise notes. There are three legitimate uses to which they may be put, namely: (1) to take care of a temporary lack of funds; (2) to extend further credit to customers; and (3) to increase the stock of easily marketable goods on hand. Definite provision must be made to meet the notes at maturity, which in the case of bank loans run from 30 days to six months—generally 60 to 90 days. The use made of funds obtained in this manner is a matter of importance to bankers when extending loans. To use any one of these forms of borrowing for the purpose of financing betterments and additions is dangerous and essentially unsound. Such obligations are generally contracted during a period of prosperity and expanding business for the purpose of taking care of temporary needs. They frequently become a source of embarrassment when a period of money stringency sets in. If the borrowings are in excess of the quick assets, the policy is unsound at all times. Conservative managers make provision for meeting their notes at maturity before they issue them. The short-term notes sold to the public usually are for longer periods than those discounted at the banks—the period ranging from one to five years. When the time is not appropriate for a bond issue and it is desirable to defer it, short-term notes are generally issued and marketed through note brokers, often throughout the country. This is an effective means of deferring a bond issue until money is easier and better terms can be obtained for the larger issue. When the bonds are sold the notes are retired with a part of the proceeds. The danger of this financial practice is that the notes may mature before the bonds can be marketed, as would probably be the case if a period of depression ensued. This would involve disaster if provision for refunding had not been made, especially as the proceeds of such notes, like the proceeds of a bond issue, are generally used for betterments and additions. Losses in Conducting the Business A business, through defects of management, does not always fulfill the expectation of its promoters. The price of the product may be set without regard to true costs, and losses pile up with or without the knowledge of the management. Competitive conditions may have to be met and efficiency of management be an absolute requisite if profits are to be made. An organization is of slow growth and the price paid for experience may eat up all the profits. Poor workmanship, duplication of effort, poor planning in the factory, resulting in a high unit cost—these are all factors which may bring disaster if not detected and remedied in time. The promoters may have been unusually optimistic in regard to the business that could be done, with the consequence that a plant is constructed much in excess of actual market possibilities. Losses of a serious nature then result from the poor utilization of fixed assets. “Lack of ability” is the phrase commonly used in describing this cause of insolvency. The usual symptom of the malady is a reduction in current assets and greater difficulty in obtaining credit. Loss through Fraud, Theft, or Unavoidable Causes The corporate form of business lends itself to exploitations of many kinds. The public is usually victimized, but sometimes the stockholders suffer through a breach of trust on the part of officers—as for example, the granting of contracts or the payment of exorbitant salaries to the detriment of the large body of stockholders. Another form of exploitation is the diversion of profitable business to some other corporation controlled by the untrustworthy officers. Then again the officers may buy up unprofitable ventures and sell them to the corporation at a large profit. The juggling of accounts may cover up fraud and exploitation. The profits may be sacrificed for the purpose of squeezing out the minority stockholders, or contracts may be made with a subsidiary whereby it takes most of the profits, or the profitable features of the corporation may be sold to a new company. These modes of freezing out the minority are naturally promoted by the majority stockholders. Whatever may be the means used, these various methods of exploitation may lead to insolvency, their ultimate effect depending upon the condition of the company and the extent to which they are carried on. Unavoidable causes which may lead to the impairment or complete loss of a corporation’s assets are the disruption of the organization and its earning capacity through fire or earthquakes or other natural causes; or new inventions may kill the demand for its product; or improvements in machinery and equipment may render obsolete a large capital investment. Methods of Liquidation There are several forms of procedure in case liquidation is found advisable or necessary, and in general there are three courses open, viz.: bankruptcy, voluntary dissolution, and receivership. _Bankruptcy._ This perhaps is the most common method. It is of two kinds—voluntary and involuntary. If voluntary bankruptcy is contemplated, the debtor files a petition in the federal court for his district, stating the number and amount of his debts and the amount of his assets. Creditors are then served with the notice and copies of the petition. Further proceedings are similar to those in involuntary bankruptcy. Involuntary bankruptcy proceedings may be brought if the debts are not less than $1,000 and an act of bankruptcy has been committed. The following are legal acts of bankruptcy: