Yves here. Although this post by Richard Murphy positively addresses the enormous costs of the limited liability regime, which is ubiquitous in today’s commerce, he does not suggest a way out. And that’s because the existence of very large businesses depends on it. No one can be a CEO or sit on the board of a business of any size if they can be personally responsible, especially since those with deep pockets will be cleaned every so often as a community leader with little money says. That’s why, even with limited liability insurance for corporate big wigs, companies of any size also buy directors and officers insurance to continue to protect their nominal executives from the consequences of their wrongdoing or negligence.
Murphy suggests tearing up. This didn’t just happen. But there are a few things that are completely impossible, completely impossible, that would do a lot to make corporate managers and boards more accountable and reduce the risks and injustices of our current “heads I win, tails you lose” .
When I was in Oz (early 2000’s) and I believe that standard was still in effect in the UK, board members were personally liable if the company was found to be “trading in debt” as in expenses or other expected debts that it could not pay. This at least led the board members to look at the company’s books, expenses, and liabilities carefully. And they can put the company into bankruptcy if they think it’s about to stray into a “bankruptcy” environment.
Having said that, it seems certain that the Big Cos even under “strong exchange insurance” buy directors and insurance officers to protect the high rise, so this in itself is not much of a solution.
The second would be to use a regime proposed by, of all people, the former New York Fed president and Goldman Sachs partner to give top executives what Taleb would call skin in the game by getting them to keep bonuses (which can be defined as anything but an all-that-high base pay level). , other incentive comp, and deferred payment to the company, for at least five years. That’s the amount of time Warren Buffett has spent a long time on managers in his repatriation business. Buffett did that to make sure that any problems with the policies written by his executive team were discovered and accounted for before he gave them their profit participation payout. Otherwise you will run the risk of rewarding managers with income that is not actually earned.
Version XX of this program will belong to this pool to serve as sub-allotments. It will pay first in the event of a major loss or insolvency.
An additional approach would be to eliminate secondary credit limits. In the US, surprisingly, shareholders and creditors cannot sue lawyers and accountants who gave bad advice that led to the company’s failure or significant losses. Only their client, like the board or management, can. As we wrote in ECONNED:
Legislators also need to pay back the second debt. Attentive readers may recall that a Supreme Court decision in 1994 disallowed charges against advisers such as accountants and lawyers for aiding and abetting fraud. In other words, the plaintiff can file a claim only against the fleeing party; he could not get help from those who made the fraud possible, say, accounting firms preparing misleading financial statements. That 1994 decision flew in the face of sixty years of court decisions, criminal law practices (the guy who drives the bank robber’s car is an accessory), and common sense. Repaying the second debt will make it more difficult to engage in vain habits.
Now for the main event.
By Richard Murphy, part-time Professor of Accounting Practice at Sheffield University Management School, director of the Corporate Accountability Network, member of Finance for the Future LLP, and director of Tax Research LLP. Originally published on Fund the Future
Submit a summary
Limited liability is a right that protects directors and shareholders from personal consequences when their companies incur debts. Historically this has facilitated economic growth by allowing the accumulation of capital, but is it okay if it can be over-exploited, especially by small companies?
In this morning’s video I note that we’ve had limited liability companies in their current form for about 170 years now, but no one at the time thought we’d have over five million of them. So, are we really doing the right thing by giving limited liability to anyone who asks for it now, or should we be more cautious?
The audio version of this video is here:
The transcript says:
Limited liability is a privilege.
It is one that I have enjoyed many times throughout my career because I have been a director of many companies over the past 40 years. They were put in place to do economic work and we were protected as directors, as shareholders – and I have been both – from the consequences of our actions by the presence of limited liability.
Limited liability was a creation that first became known in the Elizabethan era, but in its modern form, it was created in a way that was easily available to everyone from the 1850s onwards, when in the UK, companies were first allowed to be registered with limited liability by those who would be shareholders in association, in inates
That registrar is still there. It’s called the Registrar of Companies in the UK, and they use something called Companies House, which records all those companies that enjoy this right of limited liability that enjoy this right of limited liability to this day. There are over 5 million companies that currently have that right.
But I emphasize that this is a right. And when you think about it, it’s a completely absurd privilege. Imagine that today someone came up with this idea that one or two people – and one is enough – can sign a piece of paper and say they want to be a limited liability company and therefore if something goes wrong in the trade. they take then, in most cases, they will not be responsible to the creditors of the company that created the debts they did, although those who are owed, whether they are employees, or suppliers, or taxes. authority, they are indebted to that company in good faith. Everyone can say that this was an abuse of the rights of those workers, those who owed money, and that tax authority. And they would be absolutely right to do so, because limited liability is an abuse of those people’s rights.
The implication is that all those people who trade in good faith with the company may be taken for a ride because of it, and lose their money, and have very little, and in some cases, no right to recover. And that’s fine. The shareholders can leave, the loss is borne by someone else, and society is said to benefit.
Well, the truth is that society has probably benefited from the existence of limited debt as a whole. There is evidence that this ability to create limited liability companies allowed the pooling of funds from a wide range of sources to create jobs that would otherwise not have existed.
For example, the UK railways could not have been built without the existence of limited liability companies, and many other large companies have since raised money in this way, and on the whole, we have probably benefited as a result.
But this concept is still used, and more than 95 percent of all companies are small, run by one or two people these days. Do they need limited credit? Should they be protected from the consequences of their actions, which they only know about, especially when the accounts they have to enter into the public records are very limited and are not available until nine months after the end of their year, which means that everyone who trades with them is at great risk most of the time.
Is that right something we should continue to grant to everyone who asks for it? Or should we regulate its availability more tightly?
Should we, for example, make this right of limited credit available to people even in respect of their tax debts? Why should we do that?
Should we make it available regarding the responsibility people have to their employees? Why should we do that?
And is it right to do this with respect to trade creditors? People who supply goods honestly then lose their money because of it.
These are serious questions that need to be answered because these costs are imposed on society as a whole. And there is no real evidence, especially when it comes to small companies, that profits matter.
There is ample evidence that profits are being exploited. We know that there are many established companies that do not take responsibility for what they do.
We also know that perhaps 30 per cent of small companies do not pay their business tax debts, and if so they are unlikely to pay the VAT they owe and the PAYE they owe to HM Revenue. Customs in relation to their employees and deductions paid by them.
So, do we want to do this?
I ask this question sincerely because I think that the assumption that limited debt is a universal good is something that needs to be challenged now.
The time has come to question whether we need a fundamental change in the availability of limited credit to ensure that it provides a benefit to society and not a cost.
Source link