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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

  1. 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.

    This response is not to be considered legal advice by anyone. This communication, alone, does not create an attorney-client privilege. Unless you have executed a fee agreement with the attorney, that is related to the subject matter contained in this communication, you are advised not to rely on this communication to make any decisions whatsoever or to create an attorney-client relationship. No attorney-client relationship shall exist with this attorney without a fee agreement executed by you and the attorney.

  2. 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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