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Why Are Corporate Formalities Observed So Formally?
Author(s): Corie Rosen
Did you have money in the stock market in the last few
years? If you did, both you and your wallet know the hellish consequences of
corporate fraud. If you had the bad luck of being an officer in one of those
corporations, you're probably still in therapy. If you run a corporation but
are one of the honest ones, take heed. Even corporate officers and company
owners who don't use their employees' retirement funds for vacation money can
end up in court – fail to observe corporate formalities and you very well might
find yourself bankrupt and dissolved, just like Enron.
The liability protection granted by incorporating is
practical and necessary. Lots of people incorporate solely to limit their personal
liability when conducting business. What is not legitimate is forming a
corporation so you can get away with things that would normally get you in
trouble. For example, want to incorporate your taxi service to protect yourself
from getting sued if there's an accident while driving a passenger? Okay. Want
to incorporate a taxi business to protect yourself from getting sued if you
want to, say, run over people on purpose? Not okay.
When the corporation is not managed formally, courts can't
tell whether or not the corporation is actually its own entity – separate from
its owner and its owner's business assets. If it's not separate, a corporation
won't be protected by limited liability. The entire "enterprise" – the owner's
assets connected to both that business and any other related business – can be
taken in a lawsuit. In other words, in cases against corporations where the
formalities are not strictly observed, whoever's doing the suing can "pierce
the corporate veil" – break through that mythical shield that protects the
corporation's owner from extensive liability.
Keeping the corporate veil intact is relatively simple and
straightforward: the key to piercing prevention is strict observance of all
corporate formalities. Keep minutes, hold regular shareholder and board meetings,
maintain books, issue stock, and adopt a charter and by-laws – these are the
essential formalities that you have to observe. Even if you run a tiny mom-and-pop
shop, if that shop is incorporated, have a documented board of directors and
hold regular meetings. It doesn't mean that you need Michael Eisner to make
your business decisions - appoint your neighbors, friends, even children who
aren't minors, and your board is complete.
It doesn't matter who is observing the formalities or the
degree of pomp with which the formalities are carried out, the important thing
is that you do it. Document your corporation thoroughly and show that your
observation occurred on a consistent basis. It may seem silly now, but take the
extra time and energy to formalize the conduct of your incorporated business and
you will keep your corporate liability protection intact. Asking your son to
type out the minutes of a meeting you held in the living room just might save
you a few million in lawsuits later on down the line.
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