When people file bankruptcy in New York, they have to list their assets and debts on their petition. These are usually fairly straightforward: houses, cars, and other personal property. The value of these items is easy to calculate. However, many petitioners operate their own businesses, and the process of valuing them is not so obvious. First and foremost, you must add the business to your petition irrespective of its corporate structure. If it is a separate entity, you will need to list the shares and assign them a value that will be identical to the business’s value anyway. Separate entities may be filing bankruptcy on their own. If you are a sole proprietor, you will have to list the property as your own.
If you are filing in Chapter 7, be warned: any business property you own will be included in the same federal exemptions as your other private property (bank account balances, etc.) up to $11,000. This is not very high, and the Trustee is authorized to liquidate any assets above that number to pay off your creditors. If you are filing in Chapter 13, your personal property will not be liquidated, so that may be a preferable chapter for small business owners using the federal exemptions. The New York exemptions are not more generous than the federal ones—you can now claim $10,000 in the Aggregate Individual Bankruptcy Exemption for Cash, Household Goods and Clothing—but the good news is that you can now use the federal exemptions, which is something New Yorkers could not do in the past.
On to valuing your business.
The first step is to determine your business’s corporate structure. If you are a sole proprietor, you will list the assets as your personal property. If you own an incorporated business, then you will list the shares according to the business’s value. This involves determining the business’s assets. If its debts are greater than its assets, it will have no value. Although, the Trustee will also look into whether the business’s lease(s) have any value or if the business itself can be sold as a “going concern.”
Bear in mind that your business may not have much value beyond your labor. For example, if you are a barber, then your assets are mainly your labor plus a lease for space, licensing, and some supplies. You could very well be completely protected by the exemptions. The same goes for people who auction items on the Internet. All assets should be listed as “book value,” and not their market value, so do not include things like depreciation, just what you paid. Finally, if the business is a separate entity filing bankruptcy, it must file its own petition.
Businesses in bankruptcy are not simple matters and can be quite difficult to handle, particularly in New York. Experienced counsel is necessary to shepherd you through the process, especially if your business is filing separately or if you need help determining what chapter to file in.
For more questions about small businesses, bankruptcy please feel free to contact experienced New York bankruptcy Bruce Weiner for a free initial consultation.