Corporate Dissolution and IRS Form 966 – How To Satisfy The Plan Requirement

The Internal Revenue Code requires that a corporation, within 30 days after the adoption of a “resolution or plan for the dissolution of the corporation or for the liquidation of the whole or any part of its capital stock, make a return setting forth the terms of such resolution or plan and such other information as the Secretary [of the Treasury] shall by forms or regulations prescribe.”[1] In accordance with this provision, the Internal Revenue Service has adopted a regulation requiring a dissolving corporation to file a return on Form 966 (Corporate Dissolution or Liquidation) containing specified information within 30 days after adopting a “resolution or plan for the dissolution of the corporation or the liquidation of the whole or any part of its capital stock.”[2] In addition, the corporation must attach to the Form 966 a certified copy of the “resolution or plan.”[3]

All states have procedures that must be followed when a decision is made to dissolve a corporation. An affirmative vote of the shareholders is generally required to authorize dissolution.[4] A resolution regarding dissolution may or may not be required.[5] Once the decision is made to dissolve, the process of winding up the corporation’s affairs is commenced. In that process, the corporation notifies creditors of the impending cessation of business and does all acts “appropriate to liquidate its business,” such as collecting and selling assets, discharging liabilities, and distributing any remaining assets to shareholders.[6] The corporation may, but is rarely required to, adopt a formal “plan” of dissolution or liquidation in carrying out the winding-up process. However, all states require the corporation to file some type of form indicating that the corporation has elected to dissolve and/or has been dissolved.[7]

Given the realities of state dissolution procedures, as well as the use of the disjunctive word “or” in the Internal Revenue Code, the IRS regulation, and Form 966 itself, it is clear that a corporate resolution concerning dissolution is sufficient and that a separate plan of dissolution/liquidation is not required if there is a resolution. In fact, the IRS has even indicated that a corporation does not have to adopt, and file with the IRS, a resolution (or a plan) if none is otherwise required under the applicable state law.[8]

In Revenue Ruling 71-325, the situation presented to the IRS was that a corporation was dissolved in accordance with the laws of a state that did not require the adoption of a corporate resolution or plan of dissolution or liquidation. Instead, the owner and holder of all of the corporation’s authorized and outstanding stock complied with state law simply by filing a certificate of voluntary dissolution with the state. The IRS concluded that

If, under a State law, a corporation may be voluntarily dissolved without the adoption of a corporate resolution or plan simply by complying with certain statutory requirements, and a certificate of dissolution is executed in the form required and forwarded to the proper State official, such action will be considered as the adoption of a plan by a corporation for its dissolution within the meaning of section 6043 of the [Internal Revenue] Code and the regulations. The date the certificate was executed is held to be the date of adoption of the plan.[[9]]

As a result, the corporation had to file Form 966 within 30 days after the date on which the certificate of voluntary dissolution was executed and filed with the proper officer of the state. In addition, a certified copy of the certificate of voluntary dissolution had to be attached to the return in lieu of a copy of a corporate resolution or plan.[10]

In sum, a corporate resolution is sufficient and no plan of liquidation has to be adopted if none is required under state law. But once whatever required state procedure to formalize dissolution is followed, the corporation then has 30 days to file Form 966 with the IRS.

[1]26 U.S.C. § 6043(a)(1).

[2]26 C.F.R. § 1.6043-1(a). The instructions for Form 966 also indicate that it must be filed if a corporation “adopts a resolution or plan to dissolve the corporation or liquidate any of its stock.” Dep’t of Treas., IRS, Form 966, Instructions at 1, https://www.irs.gov/pub/irs-pdf/f966.pdf (last visited May 4, 2016).

[3]26 C.F.R. § 1.6043-1(b).

[4]See, e.g., Cal. Corp. Code § 1900(a) (“Any corporation may elect voluntarily to wind up and dissolve by the vote of shareholders holding shares representing 50 percent or more of the voting power.”); N.Y. Bus. Corp. Law § 1001(a) (corporation dissolution shall be authorized at a meeting of shareholders”).

[5]See, e.g., Cal. Corp. Code § 1903(a) (“Voluntary proceedings for winding up the corporation commence upon the adoption of the resolution of shareholders or directors of the corporation electing to wind up and dissolve, or upon the filing with the corporation of a written consent of shareholders thereto.”).

[6] N.Y. Bus. Corp. Law § 1005(a).

[7] See, e.g., Cal. Corp. Code §§ 1901 (requiring filing of a certificate of election to wind up and dissolve), 1905 (requiring the filing of a certificate of dissolution once the corporation has been completely wound up); N.Y. Bus. Corp. Law § 1003 (requiring filing of a certificate of dissolution).

[8] See Rev. Rul. 71-325, 1971-2 C.B. 406.

[9]Id.

[10]Id.