One of the advantages of operating a business as a corporation in Denver
is that, with some exceptions, shareholders (owners), officers and directors
normally do not have personal liability for corporate debts. Under certain
circumstances, however, there may be personal liability, such as for certain
unpaid taxes and when equitable principles cause the court to “pierce
the corporate veil,” where the court looks behind a corporate entity
and takes action as though no entity separate from the members itself existed.
In the recent (October 29, 2009) Colorado Court of Appeals opinion in
McCallum Family L.L.C. v. Winger, the court succinctly sets out the requirements
for piercing the corporate veil. These requirements are:
1. The corporation is the “alter ego” of the person or entity
in issue. Factors determining status as an alter ego may include whether:
a. The corporation is operated as a distinct business entity;
b. funds and assets are commingled;
c. adequate corporate records are maintained;
d. the nature and form of the entity’s ownership and control facilitate
misuse by an insider;
e. the business is thinly capitalized;
f. the corporation is used as a “mere shell”;
g. legal formalities are disregarded; and
h. corporate funds or assets are used for noncorporate purposes.
Not all of the requirements need be present in every case. Each case must
be decided on its unique factors.
2. The court must determine whether justice requires recognizing the substance
of the relationship between the person or entity sought to be held liable
and the corporation over the form because the corporate fiction was “used
to perpetrate a fraud or defeat a rightful claim.”
3. The court must consider whether an equitable result will be achieved
by disregarding the corporate form and holding a shareholder or other
insider personally liable for the acts of the business entity.
A major lesson to be learned from the foregoing principles is that a corporation
must be operated in all respects as a business entity separate and apart
from its shareholders, officers, directors and insiders. The requirements
of paragraph No. 1 should be strictly observed; otherwise the benefits
of immunizing individuals from corporate debt may be placed in jeopardy.