If your company’s debts outweigh its assets, then it is by definition, insolvent. In addition, if your company cannot pay its bills when due, this would also indicate company insolvency.
Of the two insolvency tests above the cash-flow test is probably the most important as you can have all the assets in the world, but if you cannot pay your bills on time you may find yourself forced into liquidation. An angry creditor (someone you owe money to) only needs to be owed ￡750+ to be able to force your company into liquidation by the use of a winding up petition.
Once you realise that your company’s insolvent, it is vital that you take immediate action to generate funds and pay, or renegotiate outstanding debts to protect your company from its creditors. It is equally important to start to assess the impact on you as a director to avoid accusations of wrongful trading and potentially being made personally liable for any company debts.
What’s the Insolvency Test?
There are two simple tests to assess whether your company is insolvent:
1. The asset test – Do your company’s debts outweigh its assets?
2. The cash-flow test – Can your company pay its bills on time?
We’ve created a free tool to help you easily complete that process here.
Who Regulates the Insolvency Business in the UK?
At the highest level, it’s the Secretary of State, although on a practical level it is the Insolvency Service. There are also a number of RPB’s (recognised professional bodies) which are authorised to licence their members to act as Insolvency Practitioners. Once licenced, the individual practitioners are regulated by their professional bodies.
Key Points for Directors:
- Avoid increasing the company’s debts once you are aware that the company is insolvent.
- You cannot simply pay off personal guarantees through the sale of assets to reduce your personal debts whilst neglecting the creditors as this can cause more complications for you.
- You cannot transfer assets to a newly formed company as there could be potential serious implications to you personally.
- Employees are regarded as preferential creditors and in any event would be covered under the Government scheme if the company does not have funds to pay them.
- HMRC are responsible for more forced liquidations than any other creditor out there, so if your company owes tax – have a chat with us to see how we can best manage the situation.
- Whilst shareholders own the company, the directors run the company and they have responsibilities such as health and safety, ensuring accounts are filed, tax is paid and so on.
- A limited company is also a completely separate entity in its own right and has its own rules and regulations and as a director you act as an officer of the company. This is very important to understand as your responsibilities are to ensure the company’s interests are at the heart when making decisions. This changes when a company becomes insolvent as you must place the creditors’ interests at the heart of your decision making. Failing to do so or making the wrong decision can create serious financial penalties so it’s important to understand what insolvency is.
Will my Company be Listed on an Insolvency Register?
Which Laws Pertain to Corporate Insolvency?
The key legislation is the Insolvency Act 1986, and the Insolvency Rules 1986. The Company Directors Disqualification Act 1986, the Employment Rights Act 1996 Part XII, the Insolvency Regulation (EC) 1346/2000.
What are the key Insolvency Processes?
Company Voluntary Arrangement
With the help of an insolvency practitioner, a company may propose a CVA to its creditors who are a formal agreement to repay monies over a period of up to 5 years. It is at the creditor’s discretion for them to agree to this and, assuming they do; the CVA can be a helpful method for a company to continue trading and find its feet.
Administration is a company rescue process which allows larger companies to take advantage of a protective ring fence that prevents legal action from creditors, while an insolvency practitioner restructures the company. An administrator is usually appointed for no longer than a year (although this can be renewed) with the aim to rescue the company, or if this isn’t possible to achieve a better return from creditors than if the company were liquidated. Administration may also be attempted to realise property that can be distributed to secured creditors.
Unlike a CVA or administration, company liquidation as a terminal process which means the company will cease to exist. During a liquidation, the IP is appointed to realise the company’s assets and distribute the proceeds to creditors. There are two forms of liquidation:
When a court order (winding up order) forcibly sends the company into liquidation because it is unable to pay debts.
These are again split into two subtypes known as creditors voluntary liquidation is, and member’s voluntary liquidation is. Both must be commenced by resolution of the shareholders but where is in MVL is usually used by a retiring director who wishes to formally closes company in a tax efficient manner, a CVL is usually used by directors who sense an impending compulsory liquidation and wish to choose a process to give them more control over the outcome.
Avoiding Director’s Disqualification
As soon as a company is insolvent, directors have a legal obligation to act in the best interests of the creditors. Failure to do this can result in a charge of wrongful trading that can have serious consequences, including director’s disqualification. When facing insolvency, the primary responsibility to cease trading immediately, and to stop paying anything out of the business bank account until you have spoken with a qualified professional.
Free Insolvency Advice
There’s no risk in speaking with us, the advice and the first meeting with our company insolvency specialists is absolutely free of charge and we guarantee that you will have your options presented to you by the end the first meeting. We will also provide you with a free report on your insolvency situation so you get some of the very best company insolvency advice with no obligations. Send us an email, or alternatively, if you would prefer to get some advice from one of our insolvency consultants over the phone then call us on; 08000 746 757.