# Regulatory Compliance Category > Labour Relations and Legislation Forum >  Closing down a business

## rattrap

I'm looking for some advice please.

I own a 15 year old business registered as a cc.
For some time now the effort involved in running the business has exceeded the benefits. There are numerous reasons for this. Mainly the abilty to manage the major expenses like wages and other labour costs has been removed from my control by our Industrial Council that has been awarding double digit increases for years now. Last year I was forced to pay bonuses equivalent to 3 weeks wages when the company really couldnt afford it. 

The chronic skills shortage in our industry (average age of an artisan is now 46) has also driven up the cost of the skilled portion of our labour. We also battle to retain skills as the bigger concerns poach our in house trained staff.

Anyway back to the point......I am now considering closing the business.
Hopefully I can sub let the premises for the balance of my lease. If I am really lucky I could sell the business out of the cc with the balance of the lease. 
I'd probably be lucky to fetch nett asset value. I'm in a hurry to take up an offer of employment.

Needless to say I cant see anyone taking the staff as part of the package.
If I plan things carefully and trade to the right point in time I am sure I will be able to settle all outstanding creditors. What I will not be able to afford to do is pay out a retrenchment package.

The question I have is : What recourse would my staff have? I assume they would have to sue the cc. Can I be held personally responsible?
Hell I'd also like a retrenchment package. I'm the longest serving member of staff ;>) 

Any input appreciated!

----------


## Dave A

:Sorry:  Obviously not enough info to understand your exact position, but based on what you've said so far, it sounds like you might be in a bit of a tough spot.

 :Hmmm:  Employees are preferred creditors nowadays.

The last 6 months of trading is open to close scrutiny when you wind up an enterprise. If you were to settle the ordinary trade creditors and stiff the employees on their retrenchment packages, you might end up being held personally responsible for "unfairly" giving the trade creditors preferential treatment. The question is whether anyone would aggressively pursue such a case.

From what I've heard, the most agressive creditors in rough order would be SARS for VAT, banks holding personal sureties and creditors holding personal sureties. If there isn't much money to chase, pretty much anyone else isn't likely to invest much in legal fees to pursue a meagre return.

Some questions:
What sort of timeline are you looking at? (How soon do you need to take up this employment offer)
Is membership of the cc in your own name?
Are you aware of all the personal sureties you have signed?

----------


## sterne.law@gmail.com

Morals and ethics aside - It is unlikely the employees would pursue the issue. Particulalry as there is more than 1 employee, unfair retrenchments become Labour Court issues and not CCMA. Thus it is more expensive and is at least a year before it gets there. Take these problems and the cost and factor in against whom they will claim, and the risk is too high.

Of course, the issue of a sale will bring other implications, such as the staff cannot just be removed, and the buyer and purchaser remain liable for retrenchment and claims, depending on the wording of the sales contract - BE CAREFUL.

As Dave points out in a liquidation the order of preference is Employees, SARS, Accountants and Lawyers(no one said life is fair) - I raise this issue in that you can make settlement agreements with the creditors, which does not ahve any judgement implications. From your statement that you can trade out of it, I presume the creditors are not owed much. If a creditor is owed R40 000 and you offer R30 000 to settle, they will in all likely hood take the deal. This depends on the cash available from a sale.

I suppose some other strategy could be a management buy out?
Is retrenchments in some form not an option? This will reduce your running costs for now(helping reduce debt quicker) and at teh same time reducing the running costs thus making it more attractive to a perspective buyer. Short time can ease cash flow, running costs and often employees tehn get other work, removing the retrenchment package cost.

Quite a few options, each with their own complications.
Are you in the motor industry by any chance?

----------


## rattrap

Hi Dave and thanks for the input.
I have no problem with anyone looking at my business post winding up.
I am not hiding a retrenchment package amount away in a Swiss Bank account.

I trade at a break even point month after month so if I stopped trading everyone would be settled but I just dont have a few hundred thousand to pay retrenchment packages and thats the honest truth!

I know exactly where I have signed personal sureties 4 suppliers and the bank for an overdraft facility that I am not using)  and I am the sole member of the cc.
 I probably need to resolve this in the next two months.

Thanks again  :Thumbup:

----------


## rattrap

>Morals and ethics aside - It is unlikely the employees would pursue the issue. >Particulalry as there is more than 1 employee, unfair retrenchments become >Labour Court issues and not CCMA.

In this event would their recourse be to the cc or me personally?
I'm confidant that liquidation will not be necessary in that I can trade to a conclusion not owing anyone anything, but I just do not have a couple of hundred thousand to spend on retrenchment payouts. I would cover accumulated leave pay and all company pension contributions are up to date as are all the other statutory deductions.

Fact is I could probably remain in business indefinetly but as I said I could sit on the wall and be in the same situation so its just not worth it anymore. :Frown: 

Thanks again!  :Thumbup:

----------


## Dave A

> I am the sole member of the cc.


A pity. It's handy to have some sort of third party firewall like an independant trust in situations like these. And your timeline is too short to restructure.

Anthony (or any other labour lawyer handy), can staff come together in a joint action for retrenchment payouts? That total figure estimate looks like it would make legal action viable under those circumstances.  :EEK!: 

rattrap, no chance of restucturing so that you trade at a profit?

----------


## desA

> I probably need to resolve this in the next two months.


Then do what your mind is telling you.

A few thoughts along your journey (I'm sure not everyone will agree):
1.  Get the advice of an inexpensive attorney - friend/family;
2.  Decide the point you want to close - fix this in stone - no turning back;
3.  Keep this final date to yourself;
4.  Cease active day-to-day trading - find a reason;
5.  Pay off your creditors - clear personal sureties - one by one;
6.  Sign up to the new job - give 1-2 months grace before start (not cast in stone).
7.  Close the doors one quiet day - with a sign directing staff to your attorney, for final settlement arrangements.

The reasoning for this is that if the employees, within the wind-up period, do not read the writing on the wall, then they are in it purely for the final wind-up cheque. This could take time to settle, if at all - life is tough - they'll get over it. Let the attorney advise & assist along the way - take the direct heat off you.

Some further advice:
a.  Do not accept direct contact - leave that to your attorney;
b.  Do not read your mail on a Friday - wait until Monday.
c.  Take a short holiday before starting your new position - you will need a fresh mind.
d.  Try to relax - it is not the end of the earth - things will eventually improve.
e.  Remember - you have done your very best - the run is over - kill the donkey in a humane way.

All the very best.

----------

Dave A (24-Feb-10)

----------


## sterne.law@gmail.com

7.  Close the doors one quiet day - with a sign directing staff to your attorney, for final settlement arrangements.


Some further advice:
a.  Do not accept direct contact - leave that to your attorney;
b.  Do not read your mail on a Friday - wait until Monday.

Many, particularly those who have not been there, will say this is wrong. unfortunately this is always a difficult and emotional journey. Yes, the staff deserve to know, but quite correctly they often stick around just to get the package, morale is low, theft increases, discipline becomes erratic etc,etc. There is also the negative word in the market, which can see creditors force a COD basis and that hampers cash flow.
Once you call it, if you can have some handle the issues that will crop up, it really helps, especially as it is emotionally draining and you will be trying to settle into the new job, which in turn has some strain.
I went through winding up a business of my own, about 2 years ago. It was such a strain that, even though i could have handled all the paperwork and nitty gritty, I did not even bother. Even the simple task of signing over the lease, I got an attorney to do for me, obviously at a cost.. :Headbutt:

----------

desA (24-Feb-10)

----------


## sterne.law@gmail.com

Anthony (or any other labour lawyer handy), can staff come together in a joint action for retrenchment payouts? That total figure estimate looks like it would make legal action viable under those circumstances.  :EEK!: 

Parties can join actions. In retrenching it is anyway a joint action because a retrenchment process is not aimed at individuals, per se.

----------

Dave A (24-Feb-10)

----------


## Dave A

You may or may not know that there are a few sites that take the TFSA feed. Here's a comment that came up on one of them:



> Tell the staff the truth and see if they want to buy the place from you with their "retrenchment" money.
> That's a win win...they get to keep their jobs, the good will with suppliers you have created and you get to pursue your next opportunity without legal baggage.
> Hell many people have received financing for this as its considered broad based BEE.
> Maybe without your salary(assuming you still pay yourself one) the company can scrape through.
> The tide has turned, you have made it 97% through, it seems sad to let it go now.
> If you have kept it going for 15 years there is a lot of history(and tenacity) and I would imagine some of the staff might have been lifers.Tell them first...they might actually care and offer fresh insight.
> The ones that don't care will probably leave on their own accord.


Some interesting thoughts there.

The only part that doesn't quite add up is the idea of the employees "buying the business out of their retrenchment money." That wouldn't solve the shortfall dilemma. However, if they're buying the business and everything carries on, there are no retrenchments and no need for retrenchment packages.

----------


## sterne.law@gmail.com

Well the buying from their retrenchment package is not really a cashflow issue. It would be the equivalent of a loan account. Cost of business R150 000, retrenchment packages R100 000, employees take their stake as per what their package woudl be and the balnce to be paid off or what ever. The one problem is raising the issue. Once you raise the point, they are aware of everything and then if you close they will definetely be asking for their packages or equivalent piece of the pie.

----------


## manhav

I am not going to argue the morals and ethics involved in the process of closing down the business.

The questions that I want you to answer yourself is:
1) How many employees do you have?
2) What is their individual monthly salaries?
3) For how long have each of them been in your employment?

With this info, one can determine the value of the retrenchment!

Then, one has to look at you creditors!!
1) Why do you owe them monies?
2) What is the outstanding amount owed to the creditors?
3) What is the current terms regarding payment?

Then , one also has to consider the debtors, and in particular how much money they owe you, for how long has these monies been outstanding, and what the chances are of recovering these outstanding debts.

Lastly, one has to consider the salary you are going to earn (I do hope that you have a firm offer of employment on the table).

With all the above info, one can maybe work out whether you can afford to pay retrenchment packages, and what to do with your creditors!!

Hope this advice helps!!

----------

Dave A (26-Feb-10)

----------


## Precious

Hi there, I am hoping that it's not too late and you haven't closed down your business yet because there could just be a solution for you that could rescue your business.
I am working on a new reality TV series called The Business Coach which is aimed at making a real difference in the lives of South African business owners. Through its broad reach, the show hopes to help many more businesses than would be possible on a one-on-one basis. It mainly rescues small to medium South African businesses and taking them to where they need to be, by giving it a boost in terms of exposure and providing professional business advice. It also helps businesses that are struggling financially, are fighting tooth and nail to stay afloat or are seeking to take their businesses to the next level. 
You definedly are a potential candidate that our new show is looking for. 

The show is primarily about helping businesses that have great potential, but for some reason or other are not doing as well as they could. We also want to guide successful businesses that are trying to expand but perhaps lack the know-how.

The business Coach is himself a successful business and life coach, with vast experience in financial services. In each episode he assesses a business and comes up with a comprehensive action plan and a series of interventions to turn things around. Sometimes this may involve help with something as simple as better bookkeeping, advertising, or a shop make over. All the advice, coaching and assistance is free of charge, and comes from top professionals in their fields. 

A business is a very personal thing, so asking for help can sometimes be difficult. People are often afraid of what people may think if theyre seen asking for advice, especially on television. However, compared to the prospect of losing the business entirely, there is nothing to lose by being involved with the show. Business owners can only benefit from the advice and assistance.

Whilst this is a television show, the core aim of the initiative is first and foremost to genuinely help real businesses prosper. The producers and sponsors hope that through the show, many more businesses in a similar situation will be able to help themselves.

However, the Coach is not there to do the work for you. He is there to look at your business in an objective way, and to help you make decisions you havent been able to, either due to your emotional connection to the business, or simply because there are solutions you werent aware of. Often, financial problems can affect the family, and family problems can affect the business. In these cases the Business Coach can offer guidance, support and motivation.

Im sure as a business owner you remember the dream of opening your own business or of taking over the family business and seeing it grow and prosper. But in todays globalised world with powerful franchises and big retail chains, it is becoming increasingly difficult for owner-run businesses to compete. Your business dream doesnt have to die.

If you are interested, please respond and I will send you the application form, which you need to complete in full, sign and email back .

If your application is successful, The Business Coach, will do a thorough, objective analysis of your business, and find concrete, practical ways to improve things. We will send a camera crew around to film the whole process. You must be able to accommodate at least 5 filming days over a period of 4 weeks.

If you yourself are not interested, but know somebody who may be, please pass on this information to them. It could be the single change that makes the difference. Your assistance would be greatly appreciated. 

Please note:

-Due to the amount of correspondence we receive, unfortunately we cannot acknowledge receipt of applications 
-By submitting your application you consent to ITC and reference checks 
-Contestants have to be over the age of 18 
-You must ordinarily reside in the Johannesburg, Cape Town and Durban area 
-You must be a South African citizen and currently live in South Africa 
-Your Business has to have been running for a minimum of ONE year to qualify 
-Businesses need to have been open for at least 1 year, and have an annual
 turnover of between R200 000 and R5 000 000 

Thanks for your time. I look forward to hearing from you.

 Kind regards


Keolebogile Maphologela

The Business Coach- Researcher 

Rapid Blue

Tel: + 27(11) 348 1449

Cell: + 27(82) 869 1419

Fax:  +27(86) 678 6826

keolebogile@rapidblue.com

----------


## totius54

in 2009 i liquidated my company been trading for 45 years.  

Do not stress ,  to cut overheads now notify MEIBC you are laying peoples of for 8 weeks and motivate why.   let all employees not key to generating turnover go.

In cc you are personal liable for sureties you signed so sell of capital equipment and settle .

If you are not planning to restart other company Sars is not the problem.

Then like the other guy said just close and walk away.

----------


## HR Solutions

> If you are not planning to restart other company Sars is not the problem.


Really ?? If you liquidate your cc SARS becomes a preferential creditor !!

----------


## totius54

> Really ?? If you liquidate your cc SARS becomes a preferential creditor !!


Yes preferential creditor after Landlord and employees  .  of what is left.

They can be preferential of what.  

Each employee with 19 year services should get 23 000 max on first payment

----------


## HR Solutions

Preferential as in SARS are the first people to get any money that is owing and then the rest will get a percentage of whats leftover.

----------


## totius54

No the First is the liquidators then landlord and then the employees and if there is anything left Sars .  I owed them R600 000.00 they got nothing

----------


## Andromeda

Also remember that it is only assessed debt that they can lay claim to.

----------


## BusFact

> No the First is the liquidators then landlord and then the employees and if there is anything left Sars .  I owed them R600 000.00 they got nothing


I thought SARS had an automatic personal surety from directors/members on debts owed to them?




> Also remember that it is only assessed debt that they can lay claim to.


Can you please explain this further. What is assessed debt and what is not?

----------


## HR Solutions

> I thought SARS had an automatic personal surety from directors/members on debts owed to them?


They do ...... not sure how this guy got away with it, but hey come second after employees.

----------


## Justloadit

He may just not be aware of it, but when you register as the public officer, you automatically become personally responsible for any outstanding taxes.
This is the reason, that one must be extremely careful when accepting this position in a company. If you are not personally responsible for the finances in the company, then DO NOT ACCEPT this responsibility!

----------


## Andromeda

Hi Busfact

If the business in liquidation has SARS as a creditor as a result of an assessment, whether arising from self assessment or by them, then that amount is claimed from the insolvent estate. 

On the other hand, assume the entity had not submitted returns for a number of periods, SARS will not attempt (and I doubt they are able to) claim amounts from the estate in respect of those non submissions. 
In other words they will only claim amounts that have been raised by assessment but that are unpaid.

----------


## Greig Whitton

> He may just not be aware of it, but when you register as the public officer, you automatically become personally responsible for any outstanding taxes.


Rubbish. This is precisely the sort of myth that SARS loves to see propagated so that they can scare representative taxpayers into assuming personal liability. Section 155 of the Tax Administrative Act clearly sets out the circumstances under which a public officer (or other representative taxpayer) can be held personally liable. It is most certainly not automatic.

----------


## HR Solutions

I notice that have answered quite strongly about a public officer but not about the SARS issue ??

----------


## Andromeda

I have posted correct information, perhaps that is the reason?

----------


## Justloadit

> Rubbish. This is precisely the sort of myth that SARS loves to see propagated so that they can scare representative taxpayers into assuming personal liability. Section 155 of the Tax Administrative Act clearly sets out the circumstances under which a public officer (or other representative taxpayer) can be held personally liable. It is most certainly not automatic.


Maybe I misunderstood this as being part of any company.



> ACT
> To amend the Marketable Securities Tax Act, 1948, so as to take into account the
> consequential amendments as a result of the amendment to the corporate
> restructuring rules; to amend the Transfer Duty Act, 1949, so as to amend certain
> definitions to ensure that the acquisition of a contingent right in a trust and the
> acquisition of shares in certain companies are subject to transfer duty; to provide
> that the person disposing of the contingent right or shares in the company and the
> trustee and *public officer* of the company shall be *jointly and severably liable* for
> the duty;


and here



> Amendment of section 3 of Act 40 of 1949, as substituted by section 4 of Act 88 of
> 1974 and amended by section 1 of Act 99 of 1981 and substituted by section 4 of Act
> 97 of 1993 and section 10 of Act 37 of 1996 and amended by section 6 of Act 60 of
> 2001
> 3. (1) Section 3 of the Transfer Duty Act, 1949, is hereby amended by the addition of
> the following subsections:
> ‘‘(1A) Where a person who acquires any property contemplated in paragraph (d)
> or (e) of the definition of ‘property’ fails to pay the duty within the period
> contemplated in subsection (1), the *public officer* as defined in section 101 of the
> ...

----------


## Justloadit

I may also have misinterpreted this section



> THE IMPORTANT ROLE OF THE PUBLIC OFFICER IN A COMPANY
> Has your company* appointed a public officer and notified
> SARS of the appointment?
> The Income Tax Act requires that all companies have to
> appoint a public officer. The appointment must be made within
> one month of the company commencing business activities, or
> acquiring an office in the Republic. Where there is a change of
> public officer, the company must notify SARS within 14 days
> of the change taking effect.
> ...

----------


## Justloadit

I picked this up from The Public Officer: A Vital Appointment



> Public Officers and their risk of personal liability
> 
> The Public Officer is subject to penalties for the companys defaults and, as a representative taxpayer risks further liability in terms of the Tax Administration Act.  For example, Public Officers risk liability for tax due to SARS to the extent that they concluded transactions or had control of income or received income from the company. They are also personally liable if tax is due to SARS and they divert or dispose of monies or assets which could have been used to settle the tax. There are differences of opinion in legal circles as to exactly how far these risks of personal liability go, but they are real risks.

----------


## Greig Whitton

> Maybe I misunderstood this as being part of any company.





> and here





> I may also have misinterpreted this section





> I picked this up from The Public Officer: A Vital Appointment


Everything you posted directly reinforces my point: a public officer (or other representative taxpayer) can only be held personally liable under specific circumstances.

----------

