Selling or Closing Your Business? Don't Forget the Final Steps
Selling or closing a business involves more than simply stopping work or making your final sale. Before you finish up, you need to properly deal with the business’s tax obligations, registrations, employees, assets, debts and legal affairs.
The exact process will depend on what entity you operate in.
Steps that generally apply to every business
Following is a list of tasks that need to be ticked off for most ceasing business:
- prepare final invoices and collect outstanding customer debts;
- pay suppliers, loans and other liabilities;
- deal with remaining stock, equipment, vehicles and other business assets;
- terminate or transfer leases, contracts, licences and insurance policies;
- make final employee payments, including wages, leave entitlements and superannuation;
- finalise Single Touch Payroll reporting and PAYG withholding obligations;
- lodge any outstanding business activity statements, tax returns, fringe benefits tax returns and taxable payments annual reports; and
- retain relevant business and tax records, generally for at least five years.
Selling, transferring or personally retaining business assets may have GST, capital gains tax, depreciation and other tax consequences. These issues should be reviewed before assets are distributed or registrations are cancelled.
Sole traders
A sole trader normally reports the final business income, expenses and asset disposals in their individual income tax return.
If you are permanently closing all business activities, your GST, PAYG withholding and other registrations may need to be cancelled, followed by your Australian Business Number.
If you are only closing one activity but intend to continue operating another business as a sole trader, you may be able to retain your existing ABN and update the business details instead.
Remember to cancel any business names, permits or industry licences that are no longer required.
Partnerships
A partnership will need to prepare final accounts and lodge a final partnership tax return. Each partner must then include their share of the partnership’s final income, deductions and capital gains in their own tax return.
The partners should review the partnership agreement and document how the partnership will be dissolved. This may include a written dissolution agreement covering:
- the closure date;
- responsibility for outstanding debts;
- the collection of unpaid accounts;
- the sale or distribution of assets; and
- the division of remaining funds.
State or Territory partnership laws may impose additional requirements. Legal advice should be obtained to ensure the partnership is properly dissolved and the partners are protected from future liabilities.
Trusts
Closing a trust usually requires more than lodging a final tax return. A legal process called ‘Vesting’ is the formal process for closing down a trust. This needs to be done by a legal professional.
The trustee should review the trust deed, settle liabilities, deal with loans and distribute all remaining trust property in accordance with the deed. Trustee resolutions, asset valuations and distribution records should be prepared and retained.
Transferring assets directly to beneficiaries or unitholders can result in capital gains tax, GST or stamp duty consequences, even where no cash changes hands. Do not distribute trust assets without first obtaining appropriate tax and legal advice!
Once the trust has been fully wound up, a final trust tax return should be lodged. Beneficiaries must also report their share of the trust’s final income and capital gains.
Companies
A company continues to exist until it is formally deregistered or wound up. Merely ceasing to trade does not end its obligations.
Until deregistration, the company must generally continue meeting ASIC requirements, including paying annual review fees, updating company details and passing required solvency resolutions.
Voluntary deregistration may be available where all shareholders agree, the company is no longer conducting business, its assets are worth less than $1,000, it has no outstanding liabilities or legal proceedings, and all ASIC fees and penalties have been paid.
All outstanding tax lodgments should be completed before deregistration. Once ASIC deregisters a company, it ceases to exist and can no longer lodge forms with the ATO.
Company assets should also be transferred or disposed of before deregistration. Assets left in the company may vest in ASIC or the Commonwealth after deregistration.
Where a company cannot pay its debts, directors should seek immediate advice from a registered liquidator and lawyer rather than applying for voluntary deregistration.
Plan before you close
The order in which you sell assets, pay liabilities, make distributions and cancel registrations can significantly affect the outcome. Speak with us early so we can assist with the tax and reporting requirements and coordinate with your lawyer or financial adviser where necessary.
Important: This article provides general tax information only. It does not constitute legal or financial advice and does not take into account your individual circumstances. We are registered tax agents and can advise on taxation matters within the scope of our engagement. You should obtain advice from an appropriately qualified lawyer regarding legal documents, dissolution, deregistration, insolvency and other legal obligations, and from a licensed financial adviser where financial product advice is required.
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