Limiting Liability and Protecting Assets in a Business Structure

Relevant For:

Business owners and entrepreneurs looking to limit liability and protect assets within their business structure.

Key Points:

• Proprietary limited companies limit liability but don’t protect business assets.
• Use a dual-entity structure to separate business risks from business wealth.
• Formal agreements and PPSR registration are essential for asset protection.
• Regularly transfer profits to avoid excess cash in the Operating Entity.
• Ensure personal assets are minimised before becoming a company director.

Full Article:

As a business owner, it’s crucial to structure your enterprise in a way that limits liability and protects assets. While operating through a proprietary limited company (Pty Ltd) is a solid first step, there’s more to consider to ensure comprehensive protection.

How a Proprietary Limited Company Works

A proprietary limited company (Pty Ltd) limits the liability of its owners to the amount paid for their shares. Typically, shares are fully paid, meaning shareholders are not personally liable for company debts if the business fails. However, directors of the company, often the same individuals as the shareholders, can be personally liable if they knowingly allow the company to trade while insolvent. Therefore, minimising personal assets before becoming a director is prudent.

Protecting Business Assets

Beyond limiting liability, protecting the value within your business is essential. In insolvency, a company’s assets, including stock, equipment, and intellectual property, are used to repay creditors. To safeguard these assets, you need a structure that separates business risks from business wealth.

Implementing a Dual-Entity Structure

A dual-entity structure involves having one entity (the Operating Entity) run the business and another (the Asset Owning Entity) hold the business assets. The Asset Owning Entity can be a trust, self-managed super fund, or another company. The Operating Entity uses the assets under a lease, licence, or loan agreement. This ensures that if the Operating Entity fails, creditors cannot claim the assets owned by the Asset Owning Entity.

Crucial Steps for Asset Protection

1. Formal Agreements: Ensure there are formal lease, licence, or loan agreements between your entities. These agreements should detail the assets involved and any fees payable for their use.
2. Registering Security Interests: Register the Asset Owning Entity’s security interest in the business assets on the Personal Property Securities Register (PPSR). This registration informs third parties that the Operating Entity does not own the assets it uses, protecting these assets if the Operating Entity becomes insolvent.

Managing Cash and Profits

Regularly pay out profits from the Operating Entity to the Asset Owning Entity to prevent large cash reserves in the Operating Entity. If working capital is needed, the Asset Owning Entity can lend cash back to the Operating Entity under a secured loan agreement recorded on the PPSR.

Key Takeaways

• A company limits liability but does not protect assets.
• Separate business risks from business wealth using a dual-entity structure.
• Formalise agreements between entities and register security interests on the PPSR.
• Regularly transfer profits to avoid cash accumulation in the Operating Entity.

By following these steps, you can create a robust business structure that not only limits liability but also protects your valuable business assets.