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April 2017

Director liability during bankruptcy

When a company faces insolvency or bankruptcy, the directors (and sometimes officers) of the company can face personal liability for the company's debts. Although a properly incorporated company is a separate legal person and as a general rule its creditors have no personal claim against the company's directors, there are many exceptions to this rule.

Acquiring a distressed business

While a failing business may be burdensome to its current owners, acquiring the entity or its assets can be very attractive to onlookers. Such a purchase takes a competitor out of the market, enables substantial instant growth and ensures a negotiated cost that may be much lower than “organic” growth. Offsetting these attractions are the risks of distressed-business acquisition, including lack of recourse, which should be addressed through due diligence, valuation and negotiation.

Deemed trust amounts

In the course of business a person, in compliance with various statutory obligations, may collect tax or withhold monies that are payable to federal or provincial governments. Examples of such collection or withholding are for provincial sales tax, goods and services tax and employee source deductions for income tax, employment insurance and Canada Pension Plan amounts.

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