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Bankruptcy: a Tool for Business Success

Bankruptcy doesn’t just clean up after the failure of a business. Bankruptcy can also prevent that failure in the first place.

 

General Motors: 2009 vs. 2013

When General Motors filed bankruptcy in 2009, it was insolvent: it owed about $173 billion and had assets of less than half that, about $82 billion. It was not able to pay its bills when they became due.

Through bankruptcy the business shed a significant amount of its debts, reduced its U.S. plants from 47 to 34 and its U.S. employees from 91,000 to 68,500.  It sold or closed the following vehicle brands: Hummer, Pontiac, Saturn, and Saab. In return for a $50 billion loan from the U.S. government, the nation’s taxpayers became 60.8% owners of G.M.

Now, four years later G.M. is profitable again. By the end of 2013 the government is expected to sell the last of its common stock in the company. According to the Center for Automotive Research, the rescue of the U.S. auto industry—including G.M.—saved 1.14 million jobs at automakers and other companies that rely on them.

If you own and operate a small business, maybe a bankruptcy could save that business, and your job in that business.

Your Business as a Sole Proprietorship

Practically speaking, your business is operated as a sole proprietorship if you did not create a corporation, limited liability (LLC), partnership, or any other kind of formal legal entity when you set up that business. You own and operate your business by yourself for yourself, although the business may have a formal or informal “assumed business name” or “DBA” (“doing business as”).

There are various advantages and disadvantages of operating your business this way. For our immediate purposes what’s important is that you and your business are legally treated as a single economic entity. That’s different than if your business operated as a corporation which would legally own its own assets and owe its own debts, distinct from you and any other shareholder(s). This blog post, and the next few on this broad topic of business bankruptcies, assumes that you operate your business as a sole proprietorship.

Chapter 7

Chapter 7, “straight bankruptcy,” or “liquidating bankruptcy,” allows you to “discharge” (legally write off) your debts in return for liquidation—surrendering your assets to the bankruptcy trustee in order to be sold and the proceeds distributed to your creditors. In most Chapter 7 cases you receive a discharge of your debts even though none of your assets are surrendered and liquidated, because everything you own is protected–“exempt.”

But if you own an ongoing business—again, a sole proprietorship—which you intend to keep operating, Chapter 7 may be a risky option. You and your attorney would need to determine if all your business’ assets would be exempt under the laws applicable to your state. Certain crucial assets of your business—perhaps its accounts receivable, customer list, business name, or favorable premises lease—may not be exempt, and thus subject to being taken by the trustee. Proceed very carefully to avoid having your business effectively shut down in this way.

Chapter 13

The Chapter 13 “adjustment of debts” bankruptcy option is generally better designed than Chapter 7 for ongoing sole proprietorship businesses. It provides much better mechanisms for retaining your personal and business assets. Even business (and personal) assets that are not “exempt” can usually be protected through a Chapter 13 plan.

You and your business get immediate relief from your creditors, usually along with a significant reduction in the amount of debt to be repaid.  So Chapter 13 helps both your immediate cash flow and the long-term prospects for the business. It is also an excellent way to deal with tax debts, often a major issue for struggling businesses. Overall, it allows you to continue operating your business while taking care of a streamlined set of debts.

Next…

In the next few blogs we will focus on some of the most important benefits of filing a business Chapter 13 case.

 

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Americans DO Now See More Class Conflict

Many more Americans now believe that strong conflicts exist between the rich and the poor. After years of very high unemployment, millions of home foreclosures, and months of the Occupy Movement dominating the news, maybe this is not so surprising. But there ARE some unexpected aspects of this change in attitude.

In mid-January, the Pew Research Center released a report titled “Rising Share of Americans See Conflict Between Rich and Poor.”

You’ve likely heard about the Pew Research Center, but you may not know that it is a highly respected public policy research organization that is not only nonpartisan, it does not even take positions on issues. Instead it sees its role as “provid[ing] information on the issues, attitudes and trends shaping American and the world.” This report is an example of data it puts out for others to debate about their policy implications.

The survey analyzed in this report was conducted in mid-December, and compared the results to those of the same survey in 2009. The main conclusion is that the percentage of people who believe that there are either “very strong” or “strong” conflicts between the rich and the poor has increased in just two years from less than half—47%– to about two-thirds—66%–of us. Even more dramatic, the percentage stating the conflict is “very strong” doubled in these two years, from 15% to 30%.

If these attitudes are not just temporary, and especially if this trend continues, the social and political consequences for our nation would be huge.

But beyond this headline-grabbing main finding, the report also contained the following surprises:

  • This perception of conflict is perceived to be greater among rich and poor than within other longstanding social conflicts in society—more than between immigrants and native born, between blacks and whites, and between young and old.
  • This perception is NOT one held only by those with lower income.  To the contrary people of all incomes share a similar increase in perception of conflict.
  • Younger people perceive more class conflict than do older people, women more than men, Democrats more than Republicans, and African Americans more than whites and Hispanics.
  • In spite of increases in perceptions of class conflict among virtually all groups, the report does “not necessarily signal an increase in grievances toward the wealthy” nor “growing support for governmental measures to reduce income inequality.” Specifically, “there has been no change in views about whether the rich became wealthy through personal effort or because they were fortunate enough to be from wealthy families or have the right connections.”
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Surprising Supporters of Increased Taxes on the Rich

Not only do the majority of the wealthy think that they should be taxed more, so do a majority of Republicans. These are the surprising conclusions of two recent polls.

When the second-richest American, Warren Buffett, wrote an op-ed column in the New York Times a few months ago advocating increased taxes for himself and everybody else with an annual income over $1 million, that wasn’t such a big surprise. He has been pushing similar policies for quite a while. For that matter so has the # 1 richest American, Bill Gates.

But that column by Buffett generated such a firestorm of opposition that it would have been easy to think that he and Gates don’t have much support among their wealthy colleagues.  Not true, according to a survey of millionaires taken during October 2011 by the Spectrem Group, “the premier research and consulting firm in the wealth and retirement industry.” More than 67 percent of those millionaires surveyed said that the U.S. economic situation would be improved by increasing taxes on those with more than $1 million in annual income, pretty much what Buffett is advocating.

Well, OK, that’s surprising. But maybe they’re so rich they can easily afford to pay taxes. Or maybe those in the top 1% being made infamous by the Occupy Wall Street folks are not as greedy as they are being made out to be. Or maybe just not that anti-government. As Mark Cuban, another of the ultra-rich, has said straight out in his own blog a couple months ago: “Pay your taxes. It’s the most Patriotic thing you can do.”

Now Gates, Buffett, and Cuban may not exactly be representative of all wealthy Americans. And who knows how reliable that Spectrem Group survey is. But if true, it’s noteworthy that a full two-thirds of millionaires think that if their taxes were higher that would help our economy instead of hurt it.

But what about everyday Republicans? I would have thought that a very strong majority of Republicans would oppose “increasing the taxes paid by people who make more than one million dollars a year.” This was the wording of the question asked in a CNN/ORC poll taken in mid-October.  But instead about 56% of Republicans favored increased taxes for these high-earners, while 43% opposed them.

I don’t pretend to know what this means. It may be as simple as an attitude—even among Republicans–of “tax the other guy to plug the deficit.” There are only about 250,000 U.S. households with incomes of more than a million dollars, so they don’t get a lot of votes in a national poll. Whatever the cause for this willingness for a selective tax-increase among the Republican electorate, it seems to reveal a disconnect between them and their single-mindedly anti-tax representatives in Washington.

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The “Occupy Wall Street” Protest Vents Anger that “A Few Prosper, Billions Suffer”

“How do we pick ourselves up when Wall St.’s stealing our bootstraps?”

“We are not leaving. Not while the richest 1% own 75% of the USA’s wealth. “

These were some of the hand-written signs at the ongoing “Occupy Wall Street” demonstration in front of and around the New York Stock Exchange as it entered its second week of daily protests. The stated mission of “Occupy Wall Street,”according to its website, is

“to flood into lower Manhattan, set up beds, kitchens, peaceful barricades and occupy Wall Street for a few months. Like our brothers and sisters in Egypt, Greece, Spain and Iceland, we plan to use the revolutionary Arab Spring tactic of mass occupation to restore democracy in America.

“Occupy Wall Street is a leaderless resistance movement with people of many colors, genders and political persuasions. The one thing we all have in common is that We Are The 99% that will no longer tolerate the greed and corruption of the 1%.”

On Saturday, September 24, about 80 people were arrested during the demonstration, mostly for blocking traffic and disorderly conduct, according to the police. The protestors vow to stay for months, camping on the streets and in the parks.

Does this demonstration signify a shift in the mood of the public? A few weeks ago, Great Britain was shocked by several nights of rioting and looking in London and several other cities. Is that going to happen here? During the current “Occupy Wall Street” events, or at some other venue in the future?

The U.S. has been going through a wrenching amount of pain from unemployment, reduced income, and home foreclosures, resulting in an overall massive downshift in expectations. Millions of families have lost large portions of their wealth, in residential real estate and retirement funds. This loss of wealth has been hugely disproportionately felt by Blacks and Hispanics, who in the last four years since the housing crash have lost jsut about all the wealth gains they had made in the previous quarter century.

The unemployment rate for 18-to-24 year olds in general, as of July 2011, was 18.1%, while for Hispanics it was 20.1%, and for Blacks 31.0%. From another, probably more revealing, perspective, “[t]his year, the share of young people [in this age group] who were employed in July was 48.8 percent, the lowest July rate on record for the series, which began in 1948,” according to the U.S. Bureau of Labor Statistics.

From my perspective in the trenches helping clients every day, I’m not at all surprised that some people are feeling like it’s time to “man the barricades.” Seems to me that the youth in particular have been rather quiet, staying in school longer to avoid the job market and to try to position themselves better for it–all the while racking up anxiety-producing levels of student loans. They are living much longer than expected with their parents, probably by the millions. Their frustrations will only increase if the economy does not find room for them.

The signs point to more demonstrations ahead.


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Luxury Sales–Some Very Tangible Evidence of the Widening Income Gap

Luxury Sales—Some Very Tangible Evidence of the Widening Income Gap

Rich Americans are buying again. The rest of us—not so much. The difference between the sales figures at luxury stores versus middle- and low-end ones is stark evidence showing who has been coming out of the Great Recession doing pretty well and those who have not.

An article in the business section of the New York Times a couple of weeks ago made the point that “the retail economy is locked on two tracks: one for businesses that cater to the well-to-do, and the other for everyone else.”

On the low-to-medium end, retailers such as Target and JC Penney posted modest single-digit gains for sales in July compared to a year ago, while others such as Kohl’s actually had lower sales this July than last. On the higher end, it seems like the more luxury-oriented to store, the better the improvement in sales. Nordstrom sales were up 6.6% this July, Neiman Marcus up 7.7%, and Saks Fifth Avenue up a whopping 15.6%.

The article I referred to above points out some ways that retailers see what’s going on inside the wallets of their customers, particularly the low- to average-income shopper. They see a pronounced dip in sales in the weeks or days before shoppers’ paydays. People have less discretionary income, and tend to be living paycheck to paycheck.  And instead of buying clothing and other seasonal items as much for upcoming seasons, more people tend more to buy only what they need when they need it. This also enables them to take advantage of seasonal sales. In turn these retailers have to cut their prices to bring in shoppers, which lowers their gross receipts.

In contrast, luxury stores are now able to sell much more of their merchandise without discount, and have even been able to increase their prices. According to Saks Fifth Avenue’s chief executive Stephen Sadove, “There’s a dramatic decline in the amount of promotions in the luxury sector — we’re seeing higher levels of full-priced selling than we saw prerecession.” Example: their Christian Louboutin “Bianca” platform pumps just about sold out, at full price, for $775 a pair. And while three years ago his store’s most expensive Louboutin suede boots cost $1,575, the top of the line  version now sells for $2,495.

But before we get out our pitchforks to storm the gated mansions of the wealthy, here’s a bit of reality to chew on: “the top 5 percent of income earners accounts for about one-third of spending, and the top 20 percent accounts for close to 60 percent of spending,” said Mark Zandi, chief economist of Moody’s Analytics. “That was key to why we suffered such a bad recession — their spending fell very sharply.”

Sounds like we need the wealthy to continue their spending.

It sure doesn’t feel like it, especially during this maddeningly slow “recovery,” but it’s true: we’re all in this together.

 

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