QUESTIONS RELATIVE TO PRESENTATION ON RANDOM LEGAL QUESTIONS – 9 & 10 PART B

QUESTION #9
Need to force turnover of tax records from corporate officer? I am a 50% owner of an S corp and am responsible for the preparation of the company’s tax returns. The secretary of the corporation has possession of important tax records that are necessary for the completion of the tax return but won’t turn them over. What legal action can I take to force him to turn over the records?

ANSWER TO QUESTION #9

Well, as a 50% owner you don’t have voting control of the corporation assuming that you are operating under the California Corporations Code.

You do have the right to cast your vote, which no doubt will be opposed by the other 50% shareholder;
So, the first thing would be to put the other party on notice that under the corporations code you are demanding that the person in possession of the tax records is required to turn them over for review by any of the shareholders etc. This could be enforced by the filing of a ‘Petition’ with the Court and serving the other party with the same.

You would also have the option to file a complaint for dissolution of the corporation based upon an inability to run the day to day operations of the corporation since there is a 50-50 deadlock.
Pursuant to Cal. Corporations Code 1800 et seq. this is one of the grounds for a court order dissolution.

Depending upon the amount of tax owed by the company etc you might be able to secure a temporary order of the Court called a mandatory injunction compelling this other person to turn over the tax records of the company as part and parcel to your action for Dissolution of the Corporation.
So, you would have a shot at forcing the turnover sooner through a Temporary Restraining Order etc. , Or, file a petition to have the Court force a turnover as an alternative to appointment of a receiver.

One of these two different approaches should work – so hopefully this information will help you get the company tax records sooner than later.

QUESTION #10
If an appraisal was not done on a parcel of real estate for the purposes of gifting from parent to child and rather than an appraisal, the estate planner just used our estimates to appraise the properties. Now 2 years later I want to hire a real appraiser because I heard if the IRSs audits the estate, later after my parents pass away, they will penalize the estate if the appraisals are wrong. Is that true?

ANSWER TO QUESTION #10

First of all , if the Estate Planning attorney was using reliable information , such as comps that are prepared by competent real estate brokers and the like, then while there could still be exposure if the values are found to be different- one would want to fall back on the premise that ‘that reasonable people can differ’;
Assuming that the comps were valid there would be a very good argument that no penalties or interest should be applicable. But, that in large part will be up to the IRS, or if no agreement is made between the parties then the ultimate decision will by the Court.

So, bottom line, if you want to avoid the exposure then hire the certified appraisers in the first place.

Respectfully Submitted,
Steven H. Wilhelm, A.P.C.

©Steven H. Wilhelm,A.P.C. 2015

By | 2015-11-28T16:15:15+00:00 November 28th, 2015|