tax-law corporate-law
Can the owner of a limited liability company be penalized?
<p>I'm wondering about the legal practice in different countries.</p>

<p>If a person forms a limited liability company (LLC), and then completely abandons it, e.g. doesn't file taxes for the company etc., what will happen? (for example, due to sudden illness)</p>

<p>In my experience, the company would be penalized, then declared bankrupt, and closed. But the owner would not be liable for any penalties, because he is technically considered a shareholder. At the same time though, he is also the director of the company. In some countries, it seems that the director is liable and personally penalizeable for failing to submit documents. And that the owner is automatically declared the director of the company, thus becoming personally liable for what should otherwise be a limited liability.</p>

<p>Is this difference based in the fundamental legal philosophy of a country?</p>

<p>I'm located in Bulgaria, and as is well known, there are many problems, but mainly with enforcement and malpractice. I care about the development of the country, and it seems that pressures from the EU has made it a lot easier to start a limited liability company. The capital requirement has been reduced to 1 euro, and all the official measures have been reduced, e.g. how much time it takes to create a company, online registration, bureaucratic burdens and so on. But what they haven't reduced, is the reporting requirements. The accounting costs are incredibly high. To submit documents, you have to pay stamp taxes and similar 'publication' taxes. In short, I can easily imagine a situation where a low-income individual seeks to start a business of their own, but, as most low-income small-business-owners who have never had a business before, would easily be at risk of failing to keep it operational. But closing a company takes a minimum of 10 months and requires numerous bureaucratic steps.</p>

<p>This leaves me wondering whether there is a fundamental legal-philosophical difference, as opposed to northern-European countries (or USA, Australia, Canada etc.).</p>

<p>And fundamentally whether, as @davidgo points out, that there is a significant risk that a 'limited liability company' can in fact, even without any activity, quickly become an enormous inescapable financial burden. Penalties for failing to comply with reporting requirements (which are very strict and numerous) can equal 2-3 months (~1200 EUR) of an average salary (400 EUR/month), per year.</p>

<p>I'm, quite frankly, outraged, but the locals are saying "well, that's Bulgaria" or "of course", without any hint of critical reflection.</p>

<p>Details vary by jurisdiction but, in general, a shareholder has no liability (more precisely their liability is limited to the value of their shares or guarantee) but a director can be civilly or criminally liable if they fail to discharge their duties as a director. These duties are related to but distinct from the duties the company itself has. In general, director's duties are owed only to the government and the shareholders - not to the public at large.</p>

<p>Frequently, the general rule has multiple exceptions that can be quite idiosyncratic from jurisdiction to jurisdiction, making a detailed answer difficult.</p>
<p>I've seen variously - exceptions for withholding taxes, for passthrough tax liability, for any liabilities of an undercapitalized company, for any liabilities have a company that has made distributions or excessive compensation payments to owners to the extent of those distributions or of that compensation, for unpaid wages of employees (sometimes up to a dollar cap), for licensing obligations that require the personal signature of the owners (e.g liquor licenses), to account for construction trust funds, for certain kinds misrepresentations, for entities used to carry on criminal enterprises, for companies that fail to give notice of their limited liability status, etc. Many would be industry specific.</p>
<p>Some countries distinguish between lack of liquidity reorganizations, good faith business failure bankruptcies and bankruptcies arising due to fraud in their bankruptcy laws with residual ownership liability in fraud causes (e.g. unwinding Ponzi schemes).</p>
<p>Some jurisdictions restrict the capacity of owners of limited liability businesses that fail to start new limited liability businesses.</p>
<p>Few jurisdictions have all of these exceptions, some probably have others that didn't occur to me. Many law digests would say that owners of limited liability companies have no liability and omit specialized exceptions that apply only to specific kinds of liabilities in specific circumstances or industries.</p>
<p>Many of the exceptions are limited to closely held company owners or owners who have some managerial role or authority, and don't apply to passive owners of publicly held shares of a publicly held corporation.</p>
