Ny Dissolution Corporation

NEW YORK CONSOLIDATED LAWS, Article 10, §§ 1001 - 1009.

General Discussion:

The Business Corporation Law requires that the consent of the State Tax Commission must be obtained and two copies of that consent must be attached to a Certificate of Dissolution prior to filing the Certificate of Dissolution with the Department of State.

To obtain the consent of the State Tax Commission to a corporate dissolution, you may submit a request by calling 1-800-327-9688. You may also submit your request by fax or mail. The Tax Department will generally respond to a request for consent to dissolution within 5 business days of submission.

The Tax Commissioner will review the corporation's account and will either consent to the dissolution or will advise the corporation of the requirements necessary for consent to be granted.

Have the following information available when you call or include this information in your fax or letter:
1. Exact corporate name as it appears on the filing receipt issued by the Department of State.
2. Identification number (federal employer identification number or NYS Tax Department issued).
3. Address where the consent is to be mailed.
4. Name, telephone number, and relationship of filer of dissolution request.

Telephone numbers and mailing address for dissolution consent requests are:

Telephone Number: 1-800-327-9688
 Fax Number: (518) 457-8124

Address: New York State Tax Department
                Corporation Tax Dissolution Unit
                Building 8, Room 302
                W. A. Harriman Campus
                Albany, NY 12227

The Tax Commissioner will issue three (3) copies of the consent to dissolution.  Two of these copies must be attached to the Certificate of Dissolution when it is filed.

A corporation may be dissolved if the dissolution is authorized at a meeting of the shareholders.

If the certificate of incorporation expressly provides, or if the corporation was formed AFTER February 28, 1998, then the shareholders must approve the dissolution by a majority vote of all of the shareholders entitled to vote. For all other corporations, the shareholders shall approve the dissolution by a two-thirds vote (unless the certificate of incorporation provides a different shareholder approval).

A corporation may adopt an amendment of the certificate of incorporation providing that a dissolution may be authorized at a meeting of shareholders by a specified proportion of votes of all outstanding shares entitled to vote.  In this case, the proportion may not be less than a majority.

In the alternative, a corporation may be dissolved pursuant to its original or amended certificate of incorporation. THIS FORM PACKET IS FOR USE WHEN THE DISSOLUTION IS BY THE SHAREHOLDERS.

When the Certificate of Dissolution is filed, along with the consent of the Tax Commissioner, has been obtained and filed, the corporation is dissolved. However, as important as following the correct procedures for "dissolving" the corporation are the actions which must be taken by the "dissolved" corporation after dissolution to accomplish the "winding up" of the corporation's affairs.

After dissolution, a corporation is not permitted to carry on any business except for the purpose
of winding up its affairs.  It has the continuing power to fulfill or discharge its contracts, collect its assets, sell its assets for cash at public or private sale, discharge or pay its liabilities, and do all other acts appropriate to liquidate its business.

Through its directors, officers and shareholders, a dissolved corporation continues to function for the purpose of "winding Up" its affairs. The directors of a dissolved corporation do not become trustees of corporate assets and title to corporate does not vest in the directors.  Assets remain in the corporation until transferred by it in its corporate name.

Dissolution does not change quorum or voting requirements for the board or shareholders or provisions regarding election, appointment, resignation or removal of directors or officers, or provisions regarding amendment or repeal of by-laws or adoption of new by-laws.

A dissolved corporation may sue or be sued in all courts and may participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise, in its corporate name, and process may be served by or upon it.

The dissolution of a corporation does not affect any remedy available to or against it or against its directors, officers or shareholders for any right or claim existing or any liability incurred before such dissolution.

At any time after dissolution, the corporation may publish a notice requiring all creditors and claimants, including any with unliquidated or contingent claims and any with whom the corporation has unfulfilled contracts, to present their claims in writing and in detail at a specified place and by a specified day, which day shall not be less than six months after the first publication of such notice. This notice must be published at least once a week for two successive weeks in a newspaper of general circulation in the county in which the office of the corporation was located at the date of dissolution. Before the date of the first publication of this notice, the corporation must mail a copy of the notice to the last known address of each person believed to be a creditor of or claimant against the corporation.

The giving of notice does not constitute an admission that any person is a creditor or claimant, and does not revive or make valid, or operate as a recognition of the validity of, or a waiver of any defense or counterclaim with respect to any claim against the corporation which has been barred by any statute of limitations or otherwise become invalid.

Any claims which are filed pursuant to the notice, and which are contested by the corporation, may be submitted for determination to the supreme court.

Any person whose claim is, at the date of the first publication of such notice, barred by any statute of  limitations are not a creditor or claimant entitled to any notice.  The claim of any such person, as well as any other claims which are not timely filed as provided in the notice, except claims which are the subject of litigation on the date of the first publication of the notice, and all claims which are filed but which are disallowed by the court, are barred as against the corporation, its assets, directors, officers and shareholders.

Tax claims and other claims of New York and of the United States are not be required to be filed.  Those claims are not barred because they are not filed.  Distribution of the assets of the corporation, or any part of the corporate assets, may be deferred until determination of any such claims.

"Laborer`s wages are preferred claims and are entitled to payment before any other creditors out of the assets of the corporation in excess of valid prior liens or encumbrances."

When the corporation has paid or make provision for payment of its liabilities, it may (if authorized at a meeting of shareholders by a majority of the votes of all outstanding shares entitled to vote thereon) sell its remaining assets and distribute the proceeds among the shareholders according to the shareholders respective rights.

A corporation, may, with or without a sale of assets, may distribute any assets remaining after settlement of liabilities, in cash or in kind or in any combination thereof, to its shareholders according to their respective rights.

"Upon the winding up of the affairs of the corporation, any assets distributable to a creditor or shareholder who is unknown or cannot be found, or who is under disability and for whom there is no legal representative, shall be paid to the state comptroller as abandoned property within six months from the date fixed for the payment of the final liquidating distribution, and be subject to the provisions of the abandoned property law."

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