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Business Bankruptcy Is Personal
Cathleen Cooper Moran

Q. 

Is personal bankruptcy the same as business bankruptcy?



-- Bill

A. 

There are few distinctions in bankruptcy law that look to the motivation for the debt in question. The means test is the most prominent example where the distinction is important. The means test applies only to individual debtor whose debts are "primarily" consumer debts. Debtors whose debts are primarily business or tax debts are not subject to the means test and its concept that certain debtors aren't eligible for bankruptcy protection.

The distinction between personal and business that IS important is the distinction that looks at "who is liable for the debt." An individual who operates a business as a proprietorship is personally liable for the debts of that business. If that individual files bankruptcy, he must list all of his debts, business and personal. The business of a sole proprietor has no legal existence separate from the individual.

A business operated by a corporation or an LLC is its own legal "person". It can be liable for its own debts and the shareholders or members of the LLC are not automatically liable for the corporation's debts. The individual is only liable if the individual incurred the debt or guaranteed the debt.

Bankruptcy law distinguishes between individuals and artificial entities liek corporations and LLC's in that individuals get discharges in Chapter 7. An entity that isn't a "real" person can get a discharge of debts only in Chapter 11.



-- Cathleen Cooper Moran






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