Business
Associations Class Notes
Here
is some background information.
Not-for-profit corporations
Yesterday,
we talked about the NYSE, organized as a
1. Charitable, religious,
educational and corporations for the prevention of cruelty to animals – The
most favored not-for-profits are those that meet Internal Revenue Code § 501(c)(3). To gain this status, you must file papers
with the IRS in advance to convince them that you’re charitable. One requirement is that no insider can have
an undue right to the income or assets of the foundation. In practice, that means that the promoter can
be a trustee, director, or president and can collect a reasonable salary and
benefits, including a reasonable salary plan.
Some people who run charitable corporations get good money! If you are a charitable organization, you’re
governed by ordinary state corporation law and also the law of charitable trusts. If you’re a § 1702 charitable corporation,
you’ll be governed by both § 1702 and § 1701 (to the extent that it’s not
inconsistent), and also by the law of charitable trusts. If you’re going to start a charitable
organization, though, do it under § 1702.
If you get into a dispute over trust law, you’ll have to go to a
treatise.
Under § 503(c)(3), you’re exempt from federal income taxation. You’re also exempt from most federal excise
taxes. You can also get an exemption
from real property taxes! But that’s not
the end of the financial feast! Under
IRC § 170, within certain percentage limits, donors making donations to you get
a federal income tax deduction.
2. Non-charitable
not-for-profits – § 503(c)(6) describes business
leagues, which provide some tax
breaks, but not nearly as many as if you are a § 501(c)(3).
The
NYSE approved a termination amount of $150 million! Many people are annoyed because the NYSE has
net income of only $25-30 million in a good year. The Attorney General of New York is
threatening to sue, which he can do if he can show that the directors were
reckless is setting this amount. If he
succeeds, that money can be recaptured.
So Grasso and Spitzer are hissing at each other almost every day!
Family law
Very
often, in dealing with business associations, family law comes up in a big way,
especially in the areas of property and divorce. In a common law jurisdiction, like
Upon
death, in most common law states, the surviving spouse can get a forced share of the other spouse’s property. It will range from 1/3 to ½. Study each state’s statutes carefully. In
Suppose
the rich lady marries the poor guy and there’s no prenuptial agreement and that
contrary to actuarial predictions, the poor young guy dies well before the rich
old lady. Is there any claim by the
heirs of the poor young guy? No, because
in the common law system, we say that the potential
interest of the other spouse that would rise to fruition if he outlives her is
an inchoate expectancy. Thus, if that spouse dies earlier, nothing of the wife’s property passes
under his will.
Consider
the “Cat in the Hatt” situation. Suppose
there had been no prenuptial agreement.
What rights in management of
the company would Hatt have had? If we’re
in a common law jurisdiction without a prenuptial agreement, and the property was
titled in her name then he would have no
management rights. But what if she took
dividends from her funeral home business to start a new funeral home company,
taking title in her own name? That would
be marital property in most jurisdictions. But, since it’s titled in her name and it
doesn’t involve land, she would have the sole management power over that new business.
How
about some really tough hypos? Let’s say
they they’re in a state with a heavy homestead
statute. She takes her money and buys a
homestead in her own name. She then
wants to contribute this homestead to a third corporation where she will own
all of the stock. How many signatures
are needed on the deed of the property in her name to the corporation? In most states, having homestead statutes,
community property or common law, there will need to be two signatures.
Suppose
the lady takes money and buys a farm that is not a homestead, and after a few years she wants to form a fourth corporation, contributing the
land. In
If
the lady owns stock in a company in a common law state and the stock is in her
own name, and she’s the only shareholder, how many signatures do you need on
the Sub S consent form? You only need
one, because if she’s in a common law jurisdiction and the corporation is
titled in her name, whether it’s separate or marital, she has the sole
management power and you only need one signature because dower and curtsey are
not involved, and stock in a corporation is not a homestead (with one
exception)!
Husband
and wife may own things jointly as tenants in common or tenants with right of
survivorship or tenants by the entireties in some states. Don’t forget the “Dos Signatures” rule! Today, more and more married couples hold
everything in joint names like this.
Community property
Nine
states are community property states.
They vary greatly between each other.
There has been a rash of new statutes and court decisions in the last
thirty years. In a community property
state, they divide between separate property and “community” or “marital” property. Let’s say Hatt and the lady had their funeral
home in
Let’s
say there is income from the funeral home, plus dividends from lots of GM
stock. The lady leaves her money to
charity. Here, the less rich spouse dies
before the more wealthy one. In
What
does this have to do with business associations? When you get to management of community property assets, “that is a goddamn mess”. There are a couple of easy hypos. In many community property states you can
hold community property in joint tenancy.
If there are two names on the property, you’ll need two signatures to
transfer. If there is a homestead in a
community property state, note that you’ll almost always need two signatures to
transfer it.
Do
community property states have dower and curtesy? Yes and no.
Mainly no, though. But in
Here’s
the big question: Sub S requires not only the board of directors making the
election but also the consent of all shareholders. The regulations used to say, and still say,
that in a community property state, regardless of how property is titled, it
will take the signature of both spouses in order for the election to be
valid. The management theory in the
community property states “is all fouled up”!
In these states, if a company is started up in a husband’s name, the attorney
must assure that the wife writes down that she doesn’t object to the
transfer. They will add a paragraph that
says: “My husband is not my partner or my agent and I’m not liable for his
debts.” Always watch out for tax
elections in community property states!
If
you sue a husband on a community property debt, you must join the wife to get
at her share of the community property.
Also, for an
In
a few states, if the husband has been married before and gets divorced, picks
up a new wife, and the new wife is a big moneymaker, then in a number of
states, the alimony payments and child-support payments due to the former wife
and kids of the first marriage can be taken out of the wife’s personal property
even if she doesn’t co-mingle. This
wouldn’t happen in a common law state though.
In a lot of those states, the part of the community that the wife
manages (that is, her personal earnings) can be liable to the contracts and the
torts of the husband! It’s wild!
If
someone is practicing law as a sole proprietor and you’re going to enter into a
five-year computer lease with him, you will want a signed statement from the
proprietor’s wife that says her part of the community property stands behind
the husband’s debt before you ink the transaction. How does she protect herself? She goes to an attorney, who tells the
husband to form an LLC or one-man corporation.
Equitable subordination – Pepper v. Litton
Here
we have a closely held corporation. The
owner had not taken his salary out. A
creditor sues. Then all of the sudden,
the owner puts a lien on the assets of his company. The outside creditors went into state court
and challenged this on the ground of common law fraud with scienter. The
Justice
Douglas holds that bankruptcy courts are always courts of equity.
Furthermore, a claim can be equitably
subordinated if there are strong equitable grounds for doing so. The outside creditor in this case did show such strong equitable
grounds. Even though there was
purportedly a preclusion issue from the
Contractual subordination
The
result is a bit different than the result in Pepper. Say you have a mid-sized public company that
needs to raise more money. They have
already borrowed a lot of money from a big insurance company and the loan
agreement requires the insurance company’s consent to any new debt. The public company
goes to the insurance company, and the insurance company says that they may
issue new debts to outsiders, but only if it is contractually subordinated to the insurance company.
The
mid-sized public company will issue debentures (unsecured debt) to the public,
with the following clause: “This debt is contractually subordinated to the debt
of Insurance Company. In any insolvency or bankruptcy proceeding, we authorize
Insurance Company to file a claim on their own behalf for their own debt and to
file, as our agent, a claim for this subordinated debt. If the total of those claims yields Insurance
Company less than the face amount of the debt to Insurance Company plus
interest, then Insurance Company keeps everything. If the total of the two claims filed by
Insurance Company yields more than the principal and interest of Insurance
Company’s debt, then the excess will be returned to us. These paragraphs create an agency and we hereby declare that the
agency is irrevocable as an agency coupled with an interest.”
Contractual
subordination is, in effect, an assignment coupled with an agency coupled with
an interest declared to be irrevocable.
Why that wording? The typical
agency power is revocable even if the revocation would cause the party revoking
to be liable in damages (which is counter-intuitive but correct). The big exception is an agency coupled with an interest.
Do you make an agency coupled with an interest merely by stating that it’s
coupled with an interest? No. The Restatement Second of Agency says that
the agent’s interest in performing services for a principal doesn’t make it an
agency coupled with an interest. But, if the agent advances substantial
money or property, and the parties state that, then the agency is irrevocable. In our example above, the drafter “gilds the
lily” to show intent.
Here
are two examples: Joe Jones enters a
two-year contract with Mr. Smith who is a sole proprietor of a café. The agreement provides that Jones is to act
as general manager of the café for two years.
Can the parties validly add to that contract the provision that it is an
agency coupled with an interest and thus irrevocable? No, because the agent’s mere interest in
providing services according to a contract ain’t
enough. So let’s say after a year
Smith called in Jones and says: “Your agency powers are over and you’re fired.” And the agency really is over! Jones can sue if his firing violated an employment
discrimination statute.
On
the other hand, change the facts. Let’s
say the business is teetering on the edge of bankruptcy and the agent agrees to
advance a $100,000 loan to the principal, agreeing further that in light of the
agent’s advancing the money, the agency is declared to be coupled with an interest
and thus irrevocable. With this changed hypo,
the result would be different. The
agency power could not be terminated because the agent could give no
cause. If the agent is dipping into the till,
then the agency can be terminated.
Subordinated
debt is widespread. If the subordination
goes only to payment of principal, it won’t screw up the tax deduction of a corporate
payor. But if interest payments are also
subordinated, you’re dead. If the
subordination goes to all creditors and not just institutional lenders, then I
think you’re dead too.
If
you’re advising a controlling shareholder or a relative of a controlling shareholder,
you must tell them that in an insolvency proceeding you’ll probably get
equitably subordinated. In
Insiders
have other problems. The first two cases
talk about the corporate veil. The corporate
veil can be disregarded for fraud and some other reasons. In DeWitt, Flemming made
the Cockerham mistake! He did the “macho” thing and promised to
stand by his corporation. He said, “If
the corporation doesn’t pay you, I will.”
In Debaun, it is held that majority
shareholders owe duties to the corporation.
The bank sold their majority stake to a madman! The judge allows the derivative action
because he wanted the money to be put into the company so that the creditor
would get paid. The attorney for the minority
shareholders could get a reasonable attorney’s fee. The controlling shareholders owe heavy duties. For starters, remember Pepper. Even if they lend money to the company, if it
goes bankrupt, they’re probably going to get pushed down the pile.