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Min Kyung Chai

Min Chai’s Answers

17 total

  • How to dissolve a S corp in California, but still keep the business name?

    My husband start a S corp couple of years ago, but he stopped using it in early 2011. Then I started using it when I did a little freelance work. Little did I know the amount of payroll fees it costs to send myself a check. I just did the math, an...

    Min’s Answer

    I agree with the other comments already provided on this question, but I also wanted to add one administrative point when filing for your dba in your own individual name after dissolving the corporation. When you send in your DBA Application to the county in which it is currently registered, you will also need to send in the Statement of Abandonment along with it in order to ensure that you get the same DBA registered in your name. Otherwise, the county may reject your DBA Application for the same DBA because it is still registered in your corporation's name. It's a technicality, but if you follow this advice, you will avoid having to refile the Application and incur unnecessary filing costs.

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  • Transferring trademark from LLC to Inc.

    We are reforming our business, closing down an LLC and reforming as a corporation. The business name will be the same except LLC will become Inc. Do we need to refile our trademark with USPTO or can we carry it over to the new business entity? Do ...

    Min’s Answer

    • Selected as best answer

    You are required to file the corporate name change with the USPTO to properly hold the trademark in the proper entity's name. You do not need to refile the trademark application, but simply filing a post-registration amendment regarding the name change should suffice.

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  • Propbable SBA loan default on a business and, selling the personal home to a non- family member at below market price.

    A colleague and I have a 51:49 SBA loan taken in CA for 748k on a pre-school in NV. The mgmt company owes pr.taxes of 35K. The county is planing to auction the property in March. The mgmt co is 3 payments behind on mortgage. We were really taken ...

    Min’s Answer

    I would like to echo my colleagues' advice against transferring any assets as such act may only expose you to additional exposure to liability and costs as it would constitute a fraudulent transfer and the bank may unwind any such transfers going back 3 years. The only thing I would add is to see if you could work out a settlement with the lender before the property is sold in March. Most lenders are surprisingly willing to work out a payment plan with the borrower than to have to deal with a default and to foreclose on a property that is upside down. Since it is an SBA loan, you may have a better chance of settling for less than if it were a standard commercial loan.

    It is strongly advisable for you to consult with a business lawyer to work out the issues.

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  • Is it possible for part of my LLC to also function as a nonprofit for certain projects?

    I own a small tutoring company and want to expand the program base to provide in school services. For this component of my business I want to function as a nonprofit so that I can receive vrants to make this program free to students and schools.

    Min’s Answer

    No, you would not be able to use your LLC to operate as a nonprofit for certain parts of your business, first of all, because an LLC is not a corporation, and in order to qualify for the tax exemptions as a nonprofit corporation, you need to set up the proper entity. Secondly, you will need to obtain the appropriate tax exemption for your nonprofit corporation from the IRS, which requires you to file Form 1023, which will require you to provide detailed information on the type of activities you intend to carry out through your nonprofit organization as well as the financial information associated with your organization. The process to file the Form 1023 with the IRS is tedious and you should consult with an attorney to walk you through the information before you apply for the tax exemption so that you can comply with the restrictions and requirement to maintain the tax exempt status. Please note that in order to maintain your nonprofit, tax exempt status, you must file your corporate tax returns on an annual basis even if you do not have any tax liabilities. Otherwise, you will lose your nonprofit status and you will be required to reapply for the exemption.

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  • Can my old boss ask companies to stop working with me??? Restraint of Trade???

    I worked for an insurance agency, and recently quit to open my own agency. I’ve been lawfully contacting my old clients and offering my services. Several clients want to continue working with me and have signed a Broker of Record letter. These ...

    Min’s Answer

    The answer to your question will turn on two main issues:

    1. Whether you actually signed a written document that prohibits you from soliciting your former clients; and
    2. Whether your solicitations constitutes a violation of your former employer's trade secrets.

    Most employers require its employees to sign various documents upon hire, such as employment agreements, employee handbook acknowledgments, nondisclosure agreements, at-will acknowledgment forms, and other administrative forms relevant to wages, insurance, and other employment benefits. These documents will almost always contain a nondisclosure, nonsolicitation, and/or noncompetition provision. These provisions basically will say that you will not disclose or use any confidential information of the employer, that you will not go after their existing clients, and will not engage in any competing activities after you leave. If you signed these documents, you have agreed not to engage in these prohibited acts. Thus, your rights and liabilities will be determined by the contractual terms of your agreements with your former employer.

    Aside from the foregoing factual issue, even if you signed a document that prohibits you from competing against your employer, such noncompete clauses are usually not enforceable in California. In California, the laws are written to protect and preserve the employees' interests in seeking employment and earning a living after they have terminated their employment with one employer. However, in certain limited cases, the court will side with the employer and enforce the noncompete clauses if and when it involves protecting the employer's trade secrets.

    Since your former employer will have a competing interest in protecting its trade secrets and may argue that the client information and those clients whom you are contacting are trade secrets, the court will have to weigh your interests in engaging in business against the employer's interest in protecting its trade secrets.

    If you were to have accepted employment with another insurance company and were facing this same predicament, you would have a very strong case against the employer and seek some form of equitable relief against him, but since you have formed your own company that competes directly with your former employer and you are seeking to cater to their existing client base, it is a bit more complicated.

    As my colleagues have advised, you may want to consult with an attorney who can evaluate and review the specific facts of your case and further advise you on how to resolve this matter.

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  • Franchising A Business in California

    I read somewhere there is an exemption to going through the franchise registration process in California if you're selling a franchise to an insider who works for your company and is familiar with everything. Is this true and are there any further...

    Min’s Answer

    The exemptions from registration are available under California Corporations Code Sections 31100-31109. Most of these exemptions are based on the parties' net worth, experience, and relationship with the franchisor. The exemption you are referring to is offered under Section 31106, however, each element requires a certain number of years of experience and/or affiliation with the franchisor to be met before you can take the exemption. So it is recommended that you review each element and discuss the facts with an attorney to determine whether you can qualify under the 31106 exemption.

    If you can qualify, you would need to file the proper forms and pay the fees to the CA Dpt. of Corporations to complete the qualification process.

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  • Looks like I have a small claims judgment against me. It was against a company I own (Corporation) and was specifically not me

    When I went to refi a personal property it showed up on title as a personal lien. Its from 15 years or so ago how do I get this corrected?

    Min’s Answer

    The only way to figure out how best to remove the lien against you personally is to first understand how the plaintiff was able to get this lodged against you in the first place. Although the facts you provide are not enough to give you any solid advice since we do not have any facts that pertain to the nature of the small claims action or otherwise, my initial guess as to why the lien appears on your personal property and not the corporation's is because you either signed a personal guaranty on behalf of the corporation (perhaps as part of a commercial lease that you signed on behalf of the corporation) or because the plaintiff was able to "pierce the corporate veil" and pursue your personal assets for the liabilities of the corporation for failing to maintain the corporation as a separate entity.

    You may want to consult with an attorney to review the lien to confirm whether it is, in fact, a judgment that was filed against you personally because certain liens, such as a UCC-1 financing statement, can be filed without the debtor's signature.

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  • What happens if a company is operating as a foreign corporation in one state and but was voided

    in the state it was incorporated in? Is that company still valid? If so, how is it governed? Thanks.

    Min’s Answer

    I would need more specifics and details as to why the corporation was "voided" or suspended in the state of incorporation to provide you with a more accurate response. However, in most cases, the most common reason a corporation is suspended by the state is either because it failed to file its annual statement (i.e. in California, it would be the Statement of Information) or failed to pay its taxes. That would be the starting point.

    If the corporate status is suspended in the state in which it was incorporated, it would also affect its status in the state that it operates as a foreign corporation because operating as a foreign corporation simply means that it was qualified to do business in that state. If you wish to continue operating in that state as a foreign corporation, you will need to renew your qualification every year and will need to submit a certificate of good standing from the state of incorporation. If the corporation is suspended, it will not be able to obtain a certificate of good standing and thus will not be able to seek the proper qualification to continue operating in the other state as a foreign corporation.

    It is thus advisable for you to consult with an attorney to rectify the situtation either with the state or the tax agency in order to bring the corporation into compliance.

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  • I need help setting up a corporation, a partnership with multiple parties.

    I want to partner with one person but we will need a contractors license to complete the work. Can we use another persons contractors license if they are also part of the partnership/corporation and actively using their license under that corpora...

    Min’s Answer

    It is highly advisable for you to sit down with an attorney and your CPA to determine whether the corporate structure you are envisioning for your specific business is the right one for you since different tax and legal consequences are triggered by the kind of entity you pursue for your business.

    With that said, you were not able to perform any services through an LLC that would require a license issued by a professional licensing agency, including a contractor's license. Thus, the only feasible business structure was a corporation. However, as my colleague mentioned, starting in 2012, LLC's would also be eligible to perform such services provided that the proper license is transferred to the business entity, be it a corporation or an LLC. Either one will help shield you from personal liability, but will afford different tax advantages under each structure, which is why it is advisable for you to consult with your CPA.

    If the contractor's license is transferred to the corporation/ LLC, it can perform the requisite services and hold itself out as a licensed contractor. If, however, you do not plan to have the license transferred to the business entity, but to only hire or admit the licensed individual to be able to use his/her license, that may subject the business entity to certain liabilities and force it to face various legal challenges for performing services through the entity without having the proper license (even if the employee or partner holds the license). There is no set "percentage" threshold that the partner needs to own in the entity to qualify the entity to use the partner's license, so you may need to call the contractor licensing board to verify the proper procedures to transfer the license.

    Moreover, if the corporation/LLC does not hold the license, it may not be able to pursue an action or claim for collection against the debtor for any work performed unless it has a valid contractor's license. Thus, the partner who holds the license would be the only one to pursue such claims.

    So it is highly advisable to consult with your attorney and CPA to determine what is the most feasible mechanism to structure your business.

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  • Is this embezzlement?

    i have noticed a discrepancy on my last two paystubs. i was shorted twice and i believe that they have been tampered with. i wouldnt put this past management; what are my options? where should i go from here? appreciate any response. thanks for ...

    Min’s Answer

    I would have to concur with my colleague in advising you to go talk to your office manager/ controller about this as it appears it may just be an oversight or a miscalculation on their part. These errors do occur and would not be elevated or deemed to rise to the level of fraud or embezzlement because there would be no intent factor that you otherwise need to prove such causes of action.

    Hope this helps.

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