If you’re thinking about closing your company you are probably worried about whether you could be held personally liable for your company’s debts, one of our team at 1st Business Rescue can help you understand the situation you’re facing, and let you know what you may or may not be responsible for.
In this article, we’ll explore in what circumstances you may be held personally liable for your company’s debts, as well as the rules and regulations that are currently in force regarding directorial liability.
What is a liability?
Firstly, let’s look at what a liability actually is. A liability is a debt that your company is responsible for. For example, bank loans, outstanding invoices, finance arrangements, tax payments and rent costs.
In what circumstances can a director be held personally liable for its company debts?
Thanks to the limited liability structure, a limited company is classed as a separate entity to its directors and shareholders. This means that a director cannot be held personally liable for company debts in most circumstances. When a limited company has debts, it’s the company that owes the money and not the director of the company.
However, there are some situations in which a director can be held personally liable, thereby leaving the responsibility to cover the debt to the director and NOT the company.
These are as follows:
- If a director has signed a personal guarantee (this is the most common situation)
If you have signed a personal guarantee and you place the company into liquidation you will be issued with a demand to repay the personally guaranteed amount. Most directors are unable to repay the money straight away and will renegotiate with the lender who in most cases will restructure the loan. Remember, the lender just wants their money back, it should be easy enough for you to get the lender to arrange new terms on the personally guaranteed debt. As long as you keep up the payment terms on your new agreement this should not have any detriment to your personal credit score either. Our extended team has decades of experience in supporting and advising directors around personal guarantees. In most circumstances, you should be able to come to some type of debt settlement arrangement with the lender. Don’t bury your head in the sand when it comes to personal guarantees as soon as you believe the business has the potential to fail speak to someone quickly to understand your options.
- If a director has inflated their company’s turnover to gain a larger bounce back loan.
You were allowed to apply for 25% of your business’s turnover in the calendar year 2019, capped at £50,000. If your business was incorporated after 1st January 2019 then you could estimate your turnover. These applications were self-certified and open to abuse. Lots of directors inflated their business turnover on the application in order to receive a larger loan. This is being classed as bounce-back loan fraud and could lead to you being made personally liable by the insolvency practitioner or the insolvency service.
- If a director used the bounce back loan personally instead of for the benefit of the company.
Anyone who used their bounce-back loan on house extensions, new cars, watches, or boats will have a shock when it gets uncovered. The spotlight is on bounce-back loans right now and more importantly, what the loans were actually spent on. If you are worried about this and the possible ramifications, it is critical you speak with someone today. If you are a one-man/women band (personal service company) and you used the bounce back loan for salary, then you should be fine as long as your drawings were in line with previous years. Be careful though as you may have built up an overdrawn director’s loan if you continued to take money from the company while the company was struggling financially and making little or no profit.
If a director has failed in their duties as a director. For example, if they have continued to prioritize their financial needs over its creditors, allowed the company to trade whilst insolvent or favoured some creditors over others. Emptying the business bank account of every penny by paying your wages before you seek insolvency advice is a sure sign that you have placed your needs over the needs of the company’s creditors.
- If you have an overdrawn director’s loan account.
This situation arises where a director has borrowed money from a company that has not been repaid. If this happens, the liquidator may be able to pursue you to recover the amount owed. Don’t leave this point to chance, you should be able to see your last published director’s loan position on the company’s last set of full accounts. You will see that your director’s loan is either in credit or overdrawn. That’s not all though, you should also review all transactions made from the company to you personally since your last set of accounts were published. Any payments above and beyond your salary could also be allocated to your overdrawn directors’ loan account by an insolvency practitioner. If you have an overdrawn director’s loan account, it is the duty of every insolvency practitioner to recover that money and distribute it to the companies’ creditors. When dealing with any overdrawn directors’ loan account, the insolvency practitioner will need to take into consideration your ability to repay the loan and the likelihood of recovery. If you are in rented accommodation, with no assets and no disposable income it’s unlikely the insolvency practitioner will be able to recover any money. In this circumstance, the entire director’s loan may be written off. If you have a family home with equity, investments, savings, and an ability to pay, the insolvency practitioner will pursue you much harder. No matter what your personal situation is, if you have an overdrawn director’s loan and your business is failing then you should seek professional advice around your options as a matter of urgency.
- If you’ve disposed of company assets, either for free or below their market value.
The process of a newco purchasing the assets from an insolvent business is called a pre-pack liquidation. If you are considering this as a viable option, you must be careful to do things in the correct manner and under the supervision of an insolvency professional. Any assets that are to be purchased from an insolvent company must be purchased for a fair market value, you will need to have the assets valued independently by an experienced valuer and you must have the relevant sale agreement paperwork.
- If you lied or misrepresented any facts when making an application for a credit or loan agreement on your company’s behalf.
- If you failed to keep a formal separation between your business and personal finances.
- If you failed to keep accurate company accounts.
- If you continued to trade with no intention of repaying your company’s debts, or you repaid the debts through fraudulent means.
What are the sanctions if I’m found to be personally liable for my company’s debts?
If you’re found to be liable for your company’s debts, then just like personal debts, you’ll be responsible for repaying them.
In some cases, you may be found criminally liable if your actions are deemed fraudulent or dishonest. You could also be disqualified and barred from being a director for up to fifteen years and in some circumstances could face criminal prosecution.
What if I can’t repay the debts?
If you are made liable for some or all of the company debts, then many directors will struggle to repay them straight away.
If you are worried about the prospect of being made personally liable for some or all of your company’s debts then you should take advice as a matter of urgency to understand what options that you have available. Depending on the reason as to why you are being made personally liable, you should be able to negotiate with the insolvency practitioner and repay a smaller amount over a period. It will all come down to your personal financial position, your ability to repay and the insolvency practitioners’ ability to recover the money. If you’re living in rented accommodation with no disposable income and no realizable assets then it will be very hard for an insolvency practitioner to recover any money from you.
Equally if you have equity in property such as the family home, savings, and a disposable income then the insolvency practitioner has a higher chance of making a recovery from you. In either case it’s important you understand your position and options up front to avoid any nasty surprises down the line.
An insolvency practitioner can and will make a director personally bankrupt if no acceptable settlement is made or if it is deemed in the creditor’s interests.
For instance, let’s say there is a director who has an overdrawn director’s loan account of £100,000 and they lied about their companies turnover to get a larger bounce back loan than the company was entitled to. The director in question has no realizable assets, no money in the bank and is now unemployed. Even though there is very little hope of the insolvency practitioner recovering any money, they will have a duty to investigate where the money has gone and what the director has spent it on. In this case it’s highly likely that the insolvency practitioner will force the director into bankruptcy so an in-depth investigation can be carried out into what happened to the company money and the bounce back loan.
What are the current rules and regulations regarding personal liability?
The primary legislation relating to liability can be found in the Insolvency Act 1986.
Here’s a review of the key sections:
Wrongful trading is covered under Section 214 of the Insolvency Act. We know what you’re thinking, what is wrongful trading? It’s the term used to describe the actions of a company director who failed to put the interests of creditors first, despite knowing that the business was insolvent.
At various points, companies may go through cash flow challenges, so there’s a risk you may accidentally end up trading whilst insolvent. However, it will only become known as wrongful trading when the business continues to operate once it has passed the point of no return. A time at which insolvency is fundamental and permanent. Another reminder to make sure you take advice as soon as you can see the business is starting to struggle.
More severe than wrongful trading, fraudulent trading is covered by Section 213 of the Insolvency Act. It’s also a criminal offense rather than a civil one.
For trading to be classified as fraudulent, it must be obvious there has been an intent to trade that would be detrimental to the creditors. For example, continuing to take deposits from customers without any intention or possibility of delivering the goods and services the deposit was intended to secure.
Covered by Section 239 of the Insolvency Act, preference payments refer to the situation where one creditor receives preference over another. For example, repaying director’s loans, or making payments to connected parties, such as family members, or specific creditors or suppliers. When a business becomes insolvent you should be careful of paying anyone as these payments will be looked at very closely by the insolvency practitioner once they become appointed.
Payments made under contractual obligation, such as employee salaries or those made under evidence of duress, would not be considered a preference payment.
Transactions at undervalue
Section 238 of the Insolvency Act covers transactions at an undervalue. This situation arises when an officer of the company sells an asset at less than market value to result in a reduced return for creditors. For example, directors selling company assets before liquidation or attempting to secure equipment at a discounted price. If you are considering purchasing some or all of the assets of the insolvent business you must seek professional advice and ensure that you have a valuation carried out by a suitable valuer.
Section 212 of the Insolvency Act covers ‘misfeasance’ or improper activity. This relates to financial activities, such as when dividends are issued inappropriately or unauthorized remuneration to directors. Insolvency practitioners are going to be looking in great detail at transactions made from the businesses bank accounts on the run up to liquidation. Any large withdrawals by the director could lead to misfeasance claims down the line.
Is it possible for shareholders to be held liable for company debts?
As with directors, shareholders also have limited liability status, meaning they’re mostly protected for incurring responsibility for a company’s debts. However, there are certain exceptions to this, including:
- Where a shareholder or a group of shareholders have personally guaranteed a debt.
- Where shareholders have acted improperly or fraudulently. For example, using company money for personal use.
I’m worried that I may be held personally liable for my company’s debt. What should I do?
Do not delay, if any information on this page concerns you then you should take advice today. All our enquiries are treated in the strictest of confidence and we will offer you free and independent advice.
At 1st Business Rescue, we’re experts in every element of the closure of limited companies, so we can guide you through what can be a stressful situation for both you and your business.
If you suspect your company is facing insolvency, contact us as soon as possible for advice. If you would like some free and independent advice, book a call here.