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Unsecured pension and business liquidation question

Woburn, MA |

I'm a part owner of a corporation. The corporation has decided to liquidate it's assets (mostly real estate), and voluntarily shut down. The company has two pensions on its books. The pensions are unfunded and unsecured. and for a fixed amount per month for a fixed number of years. Both pensions have several years remaining. One of the pension holders is a 25% stockholder and officer who voluntarily participated in the decision to liquidate. Are the pension holders entitled to the future amounts due out of the liquidation proceeds, or are the amounts lost as the business is shutting down.

Attorney Answers 2

Posted

Clearly you have a more complex set of circumstances to deal with in order to wind-down and dissolve your corporate entity. I suggest contacting and hiring a business law attorney to handle this winding down and dissolution as there may be more issues than just this pension to resolve. That being said, I believe the answer to your question depends on the pension documents/agreement and, if the owners of the company are few and are also the pension recipients, possibly the operating agreement and/or bylaws. It may also require the entity to file for bankruptcy as part of the process to (in part) protect itself and its management. Nonetheless, pension plans of private sector employees are protected under the Employee Retirement Income Security Act (ERISA). ERISA requires that pension assets be held in a trust separate and apart from other corporate assets. If the plan is underfunded, meaning that the obligations are larger than the assets, the Federal Pension Benefit Guaranty Corporation insures a portion of each employee's benefits. SO, your best bet may be to look into whether the PBGC comes into play here for your corporation.

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7 comments

Philip W. Mason

Philip W. Mason

Posted

Good solid advice

Asker

Posted

Thabks for the reply. The owners of the company are few (4), one of which is a pension recipient. The pension is not written into the corporate bylaws. The pensions were used as a method to transfer ownership from previous owners to current. The documents do not have any mention about what to do if the business closes but does say they are unsecured. The assets were never held in a seperate trust.

Travis J. Jacobs

Travis J. Jacobs

Posted

Ok. What concerns me is the use of the pension as a method to transfer ownership. Entity could owe a debt to pension recipient depending on docs / structure of arrangement. Also, where did funds go? Just because it was unsecured doesn't mean entity is off the hook. Was money used by entity? By other owners? Is pension recipient planning to sue or not concerned about funds?

Travis J. Jacobs

Travis J. Jacobs

Posted

Ok. What concerns me is the use of the pension as a method to transfer ownership. Entity could owe a debt to pension recipient depending on docs / structure of arrangement. Also, where did funds go? Just because it was unsecured doesn't mean entity is off the hook. Was money used by entity? By other owners? Is pension recipient planning to sue or not concerned about funds?

Travis J. Jacobs

Travis J. Jacobs

Posted

Ok. What concerns me is the use of the pension as a method to transfer ownership. Entity could owe a debt to pension recipient depending on docs / structure of arrangement. Also, where did funds go? Just because it was unsecured doesn't mean entity is off the hook. Was money used by entity? By other owners? Is pension recipient planning to sue or not concerned about funds?

Asker

Posted

The pensions are considered a future obligation as a fixed salary for a certain number of years. No funds were set aside. No funds were used by entity. Suit is unlikely but you never know.

Travis J. Jacobs

Travis J. Jacobs

Posted

My advice is to anticipate that a lawsuit will be filed and act accordingly, do everything possible and necessary to CYA. I've seen it happen SO many times where people/businesses think hiring a lawyer is too expensive/unecessary, but the cost of doing so and getting things done right to avoid a lawsuit or protect you/the business from suit is so much less than the alternative. Either way, I hope all works out ok for your business.

Posted

In addition to the answer provided by Atty. Jacobs, and if permitted by the plan documents and applicable law, it might make sense to calculate the present value of the pensions and offer to make a lump sum payment, and or purchase an annuity which would provide the required benefits.

Assuming the company has assets, and without knowing exactly what is in the written agreements (assuming that there are written agreements), I would expect that the pensions are obligations of the company which cannot be summarily ignored.

If it is a substantial amount, you should contact an experienced business attorney or CPA.

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