Corporations – Corporate Dissolution – Texas

STATUTORY REFERENCE:

VERNON’S CIVIL STATUTES, Title 32. Chapter 18, Articles 6.01-6.08

DISCUSSION

A Texas limited liability company (LLC) is dissolved and it must wind up its business affairs upon the happening of the first to occur of the following:

• the period fixed for the duration of the LLC expires;
• the occurrence of events specified in the articles of organization or in the regulations to cause dissolution;
• the action of the members to dissolve the LLC;
• if no capital has been paid into the LLC, the act of a majority of the managers or members named in the articles of organization to dissolve the limited  liability company;
• except as otherwise provided upon the death, expulsion, withdrawal pursuant to or as provided in the articles of organization or regulations, bankruptcy, or dissolution of a member or the occurrence of any other event which terminates the continued membership of a member in the LLC; or
• entry of a decree of judicial dissolution under Section 6.02 of this Act.

A LLC is not upon the happening of an event of dissolution if there is at least one remaining member, and the business of the LLC is continued by the vote of that/those members as stated in the articles of organization or regulations of the LLC, or if not so stated, by all remaining members.

Unless otherwise provided in the articles of organization or in the regulations, an election to continue the business of the LLC must be made within 90 days after the date of the occurrence of the event of dissolution. If an election to continue the business of the LLC is so made, the election is not effective unless an appropriate amendment  extending the period fixed for the duration of the LLC or deleting the event specified in the articles of organization that caused the dissolution is made by the LLC to its articles of organization during the three-year period following the date of the event of dissolution.

When the LLC is dissolved, the affairs of the business must be wound up as soon as reasonably practicable. The winding up is accomplished by the managers or members or by any other person or persons designated by the articles of organization, by the regulations, or by resolution of the managers or members. (A court of competent jurisdiction, on cause shown, may wind up the LLC’s affairs on application of any member or the member’s legal representative or assignee and may appoint a person to carry out the liquidation and may make all other orders, directions, and inquiries that the circumstances require.)

When the LLC is dissolved, and BEFORE it files Articles of Dissolution, the LLC:

• must cease to carry on its business except as may be necessary for the winding up process.
• must send a written notice by registered or certified mail of the intent of the LLC to dissolve to each known creditor of and claimant against the LLC.
• must collect its assets, convey and dispose of such of its properties as are not to be distributed in kind to its members, pay, satisfy or discharge its liabilities and obligations, (or make adequate provisions for payment and discharge of those liabilities and obligations), and
• must do all other acts required to liquidate its business and affairs.

In the event that the assets of the LLC are not sufficient to satisfy or discharge all the LLC’s liabilities and obligations, the LLC must apply those assets so far as they will go to the just and equitable payment of the liabilities and obligations.

After paying or discharging all of its obligations, or making adequate provisions for payment and discharge of those obligations, the LLC must then distribute the remainder of its assets, either in cash or in kind, among its members according to their respective rights and interest.

On the winding up of a LLC, the assets must be paid or  transferred as follows:

• to the extent otherwise permitted by law, to creditors, including members who are creditors in satisfaction of liabilities (other than for distributions) of the LLC, whether by payment or by establishment of reserves;
• unless otherwise provided by the articles of organization or regulations, to members and former members in satisfaction of the company’s liability for distributions; and
• unless otherwise provided by the articles of organization or regulations, to members its members according to their respective rights and interest.

When all liabilities and obligations of the LLC have been paid or discharged (or adequate provision has been made for those liabilities and obligations) and all of the remaining property and assets of the LLC have been distributed to its members according to their respective rights and interest, articles of dissolution are filed by a manager or authorized member, or in the case of a dissolution by action of the organizer of the LLC, by the organizer. In the event the LLC property and assets are not sufficient to satisfy and discharge all the LLC’s liabilities and obligations and all the property and assets have been applied so far as they will go to the just and equitable payment of the LLC’s liabilities and obligations, articles of dissolution are filed at that time.

If the LLC has elected to dissolve by action of its members, a copy of the resolution to dissolve, together with a statement that the resolution was adopted in accordance with Section D, Article 2.23, of this the Limited Liability Company Act.

When the articles of dissolution filed, there must be filed with them a certificate (#05-305 or #05-329) from the Comptroller of Public Accounts that all franchise taxes have been paid and that the company is in good standing for the purpose of dissolution.

A tax year ends on December 31st. The company must be in good standing through the date of receipt of the articles of dissolution by the secretary of state. A post mark date will not be considered as the date of receipt. The Secretary of State suggests that  companies attempting to dissolve prior to the end of the franchise tax year, make their submissions well in advance of the tax deadline.

Limited liability companies not dissolved on or before December 31st will be subject to the new franchise tax year’s requirements as of January 1st.

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