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Thread: New Companies Act and Informal SME?

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    New Companies Act and Informal SME?

    I was just wondering how the newly promulgated Companies Act will affect small businesses, for example;

    A Closed Corporation X was de-registered 12 months ago. The two given past CC members now proceed to open a partnership bank account in the name of the de-registered CC (Name minus CC at the end), continuing to trade under the name of this de-registered CC.

    What is now required to comply with this new Company Act, if any by this informal SME?

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    Gold Member Mark Atkinson's Avatar
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    Ermmm,

    As far as I know, if you are running the business as a partnership, the Companies Act will have no effect on the running of the business. The Companies Act only governs companies, private/public.

    So to answer your question, nothing is required to comply, assuming the business is now a partnership.

    continuing to trade under the name of this de-registered CC
    I hope you are not trading as a CC when the CC no longer exists because that IS illegal.
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    Thanks Mark
    Allow me amend the example slightly;
    "Jo Soap Trading CC" with two members was de-register 12 Months ago from the CIPRO Records.

    Example 1: The two partners open an "Partnership" bank account in the name of "Jo Soap Trading" to conitine trading without the CIPRO requirements.

    Example 2: The one owner opens an "Sole Proprietary" bank account with the partner having account signing power in the name "Jo Soap Trading" to continue trading without
    CIPRO requirements.

    What is now required to comply with this New Company Act, if any by this informal SME?

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    Gold Member Mark Atkinson's Avatar
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    Once again, in both those examples, you are not dealing with a separate juristic person (CC or Company). Both partnerships and sole props are "extensions" of the people who are running them, if you choose to look at it that it way. Neither one is governed by the Companies Act.

    The way I read it, by saying you're opening "Partnership"/"Sole prop" bank accounts you're implying that you are now running the business as a partnership or a sole proprietor? Am I right? If so, you would need to prepare the financial statements as such.

    Basically, partnerships and sole props are not governed by the Companies Act seeing as the owners of a partnership/sole prop have personal liability for the company's debts. If you had to convert the CC to a private/public company, then only would you need to satisfy the requirements of the Companies Act.
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    Mark
    Many thanks

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    Site Caretaker Dave A's Avatar
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    I saw a potential issue as being the rights to the name.

    The CC had the rights to the name - who has the rights once the cc has been deregistered?
    My thought was that seeing as the members become responsible for the liabilities of the cc on deregistration, it is fair to assume they jointly inherit the assets too.

    This wouldn't pose a problem if the members continue in partnership, but it could pose a problem if any of the members were not included in the new partnership.
    The trouble with opportunity is it normally comes dressed up as work.

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    Gold Member Mark Atkinson's Avatar
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    Quote Originally Posted by Dave A View Post
    I saw a potential issue as being the rights to the name.

    The CC had the rights to the name - who has the rights once the cc has been deregistered?
    My thought was that seeing as the members become responsible for the liabilities of the cc on deregistration, it is fair to assume they jointly inherit the assets too.
    I'm not sure that anybody "inherits" the right to the name after a CC is deregistered. I stand to be corrected, but I think that once a CC is deregistered, that name becomes available for use by anybody again. I don't think you can view the name of the business as an "asset" per say.

    Also, I'm not sure whether there is much that actually stops a Partnership from using a registered name, seeing as it is operating "informally". The CC could look to the courts for an interdict, but that is tedious and seeing as the CC no longer exists, I'm not sure that anybody would have any way of stopping somebody from using the name, besides registering it as a Trademark.
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    I tend to agree with what Mark has posted above.

    The only thing I see changing when the act eventually comes into effect will be the use of the "trading as" name. This is something Dave brought up in a previous post. Essentially all sole proprietors using a trading name will have to register that name with Cipro (or its replacement). The only exception will be if you are trading as the name in your ID book.

    So, if Joe Soap trading is already going by the time the act comes into existence, they will have to register their name within some period. If they start trading after the act comes into existence, they will need to register is straightaway.

    Except for the above, I don't think the Act will have anything else do do with them as they are sole proprietors and not corpotate entities.

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    Thanks for all the input. I have heard the phrase "Defensive Name" mentioned at one stage. Just for interest sake "Jo Soap Trading CC" closed without any assets.

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by Mark Atkinson View Post
    I stand to be corrected, but I think that once a CC is deregistered, that name becomes available for use by anybody again.
    I don't know for sure either way how things stand nowadays. So much seems to have changed, or simply got sloppy (like checking for similar names conflicts). But many years ago, before there was such a thing as deregistration of companies, a company had to be "inactive" for 5 years before someone else could use the same or similar name.

    I'd also bear in mind that along with deregistrations has come that wonderful curve ball, reregistration of companies. Perhaps not likely in this case, but something to bear in mind in any right-to-name discussion.
    The trouble with opportunity is it normally comes dressed up as work.

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