Chapter 13 can help keep certain small businesses afloat, but what about Chapter 7? Can it be used to save a small business?
Generally, Chapter 7 is seldom a good option if you own a business that you want to keep operating. This is because Chapter 7 is a liquidation in which the bankruptcy trustee could make you give up any valuable parts of your business.
Once a Chapter 7 bankruptcy is filed, all of the debtor’s assets are automatically transferred to a new legal entity called the “bankruptcy estate”. A trustee is assigned to oversee this estate, which usually means that the trustee is looking for assets in the estate that are worth taking and giving to creditors. The debtor can protect, or “exempt,” certain assets, which remain the debtor’s and cannot be taken by the trustee. The reasoning behind exemptions is that bankruptcy filers should be allowed to keep a minimum amount assets to live on while obtaining a fresh start. In most consumer Chapter 7 cases, the debtor can exempt all their assets, leaving nothing for the trustee to take. This type of bankruptcy is called a “no-asset” case.
Can you file a Chapter 7 and continue to operate a business? The answer requires responses to two other questions:
First, can you exempt the entire value of the business from the bankruptcy estate?
Many small businesses are would not exist but for the services of one or two owners. In that case, they could not be sold as a going concern separate from their owners. When faced with this type of case, a Chapter 7 trustee must decide whether he or she can sell any of the various assets that make up the business, or whether the debtor can exempt all of its assets.
The assets of a small business can include tools and equipment, receivables (money owed by customers for goods or services already provided), supplies, inventory, and cash. There may also be value in a brand name, a below-market lease, or some other unusual asset.
If all of a business’ assets can be exempted in bankruptcy, it is possible for the owner/debtor to have a no-asset Chapter 7 case.
The second question is whether the trustee is willing to allow the business to operate in spite of its potential liability risks for the estate?
Recall that everything you own immediately becomes part of the bankruptcy estate once your case is filed. One result of this is that your business becomes the trustee’s to operate. Thus, the estate is potentially liable for damages caused by the business. The trustee may also be liable for such damages. That is why many Chapter 7 trustees’ want to shut down ongoing businesses where the owner is in an active bankruptcy. The exceptions to this depend on the trustee, the nature of the business, and whether it has sufficient liability insurance.
Photo by Peter Blanchard.