#delegate vs trustee

[freehawaii]

THE ARTICLE HONOLULU CIVIL BEAT RECENTLY REFUSED TO PUBLISH

OHA Trustee Mililani B. Trask Response to Honolulu Civil Beat article by Peter Apo (04/18/2023) “OHA Abandons Commitment To Self Governance”

Recently, Civil Beat teamed up with ex OHA Trustee/State Legislator, Peter Apo, in an effort to resurrect the Hawaiian vs Hawaiian debate on building a Hawaiian nation. Civil beat failed to include the history of the state democratic party’s effort to create a native nation for the state’s benefit and did not review years that were wasted on failed initiatives. Civil & Apo also ignored the millions of dollars of costs for the effort, paid by OHA with revenues from the Ceded Land Trust. 

The historic record speaks for itself. Hawaiians did not initiate the Kanaiolowalu and Na’i Aupuni Nation Building initiatives. These initiatives were created by the state legislature, but OHA was made to pay for it with our beneficiaries trust funds. 

The record reveals the following: 

1. For over a decade the State supported federal recognition of Hawaiians under the “Akaka Bill” in Congress because of fears that federal funding provided to native Hawaiians as “Native Americans” would be lost to the State unless there was a Hawaiian ‘Indian Nation’. 

2. When the Akaka Bill died in the Congress, the State legislature moved to create a Hawaiian nation on their own! They passed ACT 195, later known as the Kana’iolowalu (HSEC) Initiative. The effort involved the formation of a Hawaiian Roll Commission to register 200, 000 Hawaiians to vote in a future election for delegates to a Hawaiian Constitutional Convention thereby creating a Hawaiian Nation. Over 60% of the nearly 85,000 who were sent ballots in mail refused to participate in the election of delegates. 

3. In 2014 when it was clear that Kanaiolowalu was dead, a group of Native Hawaiian individuals who were members of Hawaiian organizations that had received funding for Kanaiolowalu, moved on their own to form a non-profit Consortium called Na’i Aupuni. This non-profit did not identify directors with DCCA when it was created, nor did it have a G.E. Tax license for tax exempt status as required by the IRS. Millions were wasted. In the end, no election of delegates by Hawaiians was ever achieved. 

4. OHA did not create Kanaiolowalu or Na’i Aupuni but was required to provide millions of trust dollars in order to facilitate federal recognition for a paper nation which would have no land and no jurisdiction over the assets and resources of the Hawaiian people. 

In the years that have transpired since these events occurred, a new OHA Board of Trustees has been elected. The majority of the current OHA board knows the definition of ‘Self-Determination’ ..... it is a Human right of all peoples including the Hawaiian peoples. It is not a political right of the United States or the State of Hawaii. The current Board of OHA Trustees has no intention of usurping the right of our Hawaiian beneficiaries to pursue their right of ‘Self-Determination’ through Nation building. 

OHA’s priorities are clear, they are the development of Kaka’ako and Hakuone so that Hawaiian beneficiaries will have a place to call home, a cultural center to showcase the value of our peoples. Our priorities are to create an economic engine for maintaining existing programs in the areas of Health, Education, the preservation of Native Language, the protection of native Legacy Lands, and the provision for affordable housing for the 28,000 Hawaiians currently dying on the Department of Hawaiian Homes Land waiting list. 

The current board of OHA trustees are well aware of the past abuses that our office was subjected to in the pursuit of ‘federal recognition’. It is significant to note that the State Auditor, the Clifton Larson Allen Accounting Firm and Plante Moran Finance Firm, who conducted the 3 audits of OHA’s expenditure in past years all flagged the Nation building effort and the activities of Na’i Aupuni as Fraud Waste and Abuse. 

In an ongoing effort to achieve accountability and address these past abuses, the current Board of Trustees has delivered all materials, information, and data relating to The Kanaiolowalu (HSEC)/Na’i Aupuni Nation building effort to appropriate Federal and State Investigators for follow-up. 

Mahalo nui loa, 

Mililani B. Trask

Hawai’i Island Trustee 

OHA Board of Trustees Vice Chair 

 https://www.civilbeat.org/2023/04/oha-abandons-commitment-to-self-governance/ (Civil Beat Article written by Peter Apo 4/18/2023) 

https://www.civilbeat.org/2015/11/an-initiative-for-self-governance-without-state-or-federal-interference/ (Civil Beat Article written by Mililani B. Trask 11/13/15) 

https://www.civilbeat.org/2015/10/roll-of-thunder-lifting-the-veil-on-nai-aupuni/ (Civil Beat Article written by Trisha Kēhaulani Watson 10/27/15) 

https://www.civilbeat.org/2015/06/native-hawaiian-roll-commission-must-release-voter-records/ (Civil Beat Article written by Chad Blair 6/4/15) 

http://www.hawaiifreepress.com/Articles-Main/ID/13906/Kanaiolowalu-Broken-Trust-on-Steroids (Hawaii Free Press article written by Andrew Walden 11/2/14)

[wortzentriert]

Chapter 2: The Covenant Model | Gary North -- Specific Answers

Sutton presented the covenant model in this form:

1. God (transcendent, yet immanent)

2. Hierarchy

3. Ethics

4. Sanctions

5. Continuity

A reader recommended this restructuring:

1. Transcendence/presence

2. Hierarchy

3. Ethics

4. Oath

5. Succession

The acronym is THEOS, the Greek word for God.

In my 1980 book, Unconditional Surrender: God’s Program for Victory, I instinctively adopted the first three: God, man, and law. In the third edition, published in 1988, I added time. In the 2010 edition, I completed it by adding sanctions. I hope that this is the final edition. Here are the five inescapable components of covenant theology.

1. God

2. Man

3. Law

4. Sanctions

5. Time

This structure is visible in the structure of the Pentateuch.

1. Genesis (origins)

2. Exodus (authority)

3. Leviticus (law)

4. Numbers (sanctions)

5. Deuteronomy (inheritance)

I put all this into one short (for me) book: God’s Covenants (2014). [http://bit.ly/5covs] I also discussed the five covenants in history: dominion, individual, family, church, and state. This laid the foundation for my identification of the five inescapable factors in all social theory.

1. Sovereignty

2. Authority

3. Law

4. Sanctions

5. Succession

B. Economics: Five Points Times Four

I begin with God. Here are the theocentric judicial principles of economics in 15 words.

Judicial (theocentric)

1. God owns everything.

2. God delegates ownership.

3. God prohibits theft.

4. God evaluates performance.

5. God mandates growth.

God designates men as His trustees. As trustees, they are authorized to act in God’s name as judicial representatives. Here are the rules of trusteeship in 15 words.

Judicial (representative)

1. Owners are trustees.

2. Trustees possess authority.

3. Trusts are binding.

4. Trustees are accountable.

5. Trustees designate successors.

There are also economic aspects of delegated ownership. God requires men to act as stewards. These are responsibilities of property management. Men must act on God’s behalf. They must put His interests above their own. The laws governing men’s stewardship are structurally the same as God’s laws of ownership, but suitable for creatures. Here are the rules of stewardship in 15 words.

Stewardship Laws

1. Purpose precedes planning.

2. Priorities structure planning.

3. Ownership involves exclusion.

4. Owners evaluate performance.

5. Owners designate heirs.

Trusteeship has two aspects: judicial and economic. The judicial aspect is a matter of guardianship. The economic aspect is stewardship. This distinction goes back to God’s designation of Adam as His trustee over the creation. The garden was Adam’s testing place. God told Adam to dress the garden and keep it (Genesis 2:15). [North, Genesis, ch. 9] Stewardship was economic. Guardianship was legal. Stewardship involved increasing the value of the property. This is the meaning of “dress.” Guardianship involved defending God’s property from unlawful invasion. This is the meaning of “keep.” Other translations translate “keep” as “work.” Stewardship is trusteeship on behalf of. Guardianship is trusteeship in the name of. Both responsibilities are aspects of ownership: God’s original ownership and man’s delegated ownership.

Ownership is an inescapable concept. It is never a question of hierarchical ownership vs. no hierarchical ownership. It is always a question of who is the supreme owner. This structure of ownership leads to laws of economics. These laws are not autonomous. They are the results of God’s covenantal ownership. These laws govern the structure of production. Here are these laws in 15 words.

Economic Laws

1. Owners adopt purposes.

2. Prices provide information.

3. People prefer more.

4. Scarcity imposes costs.

5. Growth reduces scarcity.

[oneminutetoeleven]

"Members of Parliament owe their constituents their judgement, they shouldn't just say 'well tell us what you want and we'll do it'"

-Tony Blair, reincarnation of Edmund Burke

[mcpherson1031dst]

As early as the 16th century, the concept of property held by one person in trust for another person was part of English common law.

For nearly 400 years, the common law fund has been used by lawyers, primarily for the benefit of extremely wealthy individuals who have established a kingdom of trusts to pass the ownership of assets from generation to generation with the least tax and the greatest amount of wealth. security in the process.

However, a Delaware Statutory Trust (DST) is a legal entity, created by filing a trust certificate with the Delaware Department of Corporations, and subject to Chapter 38, Part V, Title 12 of the Delaware Code. Annotated (see §§ 12 § 3801 to 3862).

Legal Trust vs. Mutual Trust Delaware is one of the few states in the United States that has a statutory trust act. Most states still rely on common law trusts.

Common law trusts, while still often in use, have many outdated rules, which can create uncertainty about a number of legal aspects of the trust. Delaware has undertaken the task of modernizing the common law and establishing an effective and judicially secure form of entity.

Legal credit law, similar to the Delaware LLC law, is based on the legal principle of freedom of contract (see 12 § 3823(b)). This gives the power to determine the rights and responsibilities of the various parties to the drafters of the ruling instrument, which is generally called a trust agreement (see 12 para. 3801(f)). A trust agreement is the private document governing an entity.

Delaware does not require the filing of a trust agreement (unlike many other states), and therefore the parties to the trust and their relative duties and responsibilities may remain confidential from the parties involved (see 12 §3810).

The trust agreement is a final document, and Delaware law provides that a Delaware Chancery court will enforce its terms on trustees and beneficial owners (see 12 §3804).

What does a Delaware legal fund do? A trust agreement is a contract and therefore enforceable. It can establish different classes or groups of trustees and/or beneficial owners (see 12 §3806), and establishes the nature of the distributions of trust assets in favor of beneficial owners (see 12 §3805).

Trustees may have very broad powers or very limited powers, depending on the trust agreement, and can delegate their duties and powers to the officers, committees, agents, or other persons mentioned in the trust agreement (see 12 §3806).

There is no requirement to draft the trust agreement in English, and no requirement to submit the document to any authority in Delaware for approval.

There are no restrictions on the specific location that the trust agreement must be kept in, and there is no specific format or wording that must be taken into account. In fact, the drafters have the full power to invent the trustee and beneficial owners relationship as they wish.

For example, the voting rights of the trustee or beneficial owners may be extended, limited, or revoked in connection with any matter relating to the fund, such as investment decisions or distribution decisions (see 12 §3806).

This provides greater flexibility compared to common law trusts and most alternative forms of business organisation, which often contain mandatory provisions on matters such as voting rights and dividends.

How to Open a Delaware Legal Trust The Delaware Legal Trust Act (DSTA) states that the trust is a separate legal entity and that no creditor of the beneficial owner is entitled to any property belonging to the trust (see 12 § 3805)(b)).

The DSTA also states that the beneficial owner has no identifiable interest in the trust property (see 12 §3805(c), and the beneficial owner may terminate the trust only in accordance with a special trust agreement (see 12 §3803).

Therefore, the other beneficial owners of the trust are protected against any bankruptcy or divorce of the beneficial owner, or any major life changes.

Beneficial owners may have the same limitations on the entity's personal liability as Delaware shareholders (see 12 §3803); That is, beneficial owners may participate in the management or effective control of the legal trust through the direction of the trustees, without incurring any personal liability (see 12 §3806(a)).

Beneficial owners may transfer their interests to others, unless prohibited or restricted by the trust agreement. Courts will allow portability unless specifically limited in a trust agreement (see 12 §3805(d)).

Trustees vs Beneficial Owners In general, an entity has two types of participants: trustees and beneficial owners:

The trustee retains legal ownership of the trust assets, but is required to follow the terms of the trust agreement in managing these assets. The beneficial owner has equitable ownership and is also bound by the terms of the trust agreement with respect to his or her ability to manage, control or benefit from the assets. Trustees and beneficial owners cannot be held liable for their good faith reliance on the provisions of the trust agreement (see 12 §3802). At least one trustee must be a Delaware resident and may be satisfied by appointing a Delaware trust or forming a Delaware corporation to act as trustee (see 12 §3807).

There is no Delaware tax or income tax on statutory trusts formed in Delaware.

Under the United States Internal Revenue Code, a business trust can be treated as a grantor, partnership, or partnership trust, just like a corporation, depending on the wording of the trust agreement.

With the "check the box" regulations in place, it is possible for a charter fund to choose the type of tax structure under which it wishes to operate. Additionally, nonresident alien beneficiaries of established trusts are not required to pay any income tax or file any tax return in the United States. See 26 CFR Section 1.6012-1(b)(2).

A Delaware statutory fund may qualify as a REMIC (real estate management investment contract), REIT (real estate investment trust), or a regulated investment company, such as a mutual fund, under an IRC and receive preferential tax treatment .

Mutual funds created with a Delaware statutory trust may not be required to hold annual meetings of shareholders or allow shareholders to vote on any matter.

Delaware statutory funds are often used to finance commercial aircraft. The trust owns the aircraft, which is administratively managed by a Delaware trust. The airline is the beneficial owner, using and maintaining the aircraft while paying the lender, generating a return on investment.

This type of arrangement is sometimes called a leveraged lease; In this way, none of the three is responsible for the aircraft itself, in the event of an accident. This type of entity demonstrates how much flexibility is allowed while still protecting the parties under a law that respects its trust agreement and the good faith management decisions of the parties involved.

Delaware Legal Fund Benefits To summarize, here are some of the benefits of forming a Delaware statutory fund:

More security than "general" trust relationships Flexibility in defining the categories of trustee and usufructuary, as well as the specific rights and responsibilities of the different parties included in the trust Privacy of individuals due to a trust deed not required to be filed with the State of Delaware No franchise tax or income tax in Delaware For those who want to learn more about trust.

McPherson Delaware Statutory Trust (DST)

1402 Villa Juno Drive S Juno Beach, FL 33408

321-297-3217

http://www.linkedin.com/in/jaymcphersonirc1031exchangedelawarestatutorytrustdst

[loyallogic]

Personal liability of directors towards the debts of the company

This article is written by Ridhi Suri, pursuing a Certificate Course in National Company Law Tribunal (NCLT) Litigation from Lawsikho.com.

Introduction

As a central principle of company law in India and across various other jurisdictions, a company is considered as a separate legal entity, distinct and independent of the persons that constitute it. This conception is largely understood as the veil of incorporation[i], a principle that separates the legal personality of a company from its members, thus affording them protection against personal liability towards the debts and obligations of the company. This brings us to a question: “Can Directors of a Company be made personally liable for the debts that the latter owes to its creditors?” As per the general notion and the aforesaid principle, the answer is negative. However, since a company is merely a legal person and not a natural one, it is operated and managed through its directors who are responsible for its daily affairs and act as agents or trustees of the company, and the fact that an artificial person does not possess the capability to act in an illegal or fraudulent manner cannot be overlooked. Therefore, due to the burgeoning abuse of the principle of the veil of incorporation, courts do not hesitate in lifting or piercing the corporate veil and make such directors personally liable for any misfeasance or fraudulent activities done by them under the name of the corporate personality. Such perception of the courts can be dated back to the 18th century, where the Hon’ble High Court of Judicature at Bombay opined that “A man, of course, is not forced to place himself in a fiduciary position, but if he does undertake the affairs of others he must exercise ordinary prudence and vigilance.”[ii] It further went on to state that “It is an established rule that trustees cannot delegate their office, and, if they do thus divest themselves of their trust, they are held liable for any breach of trust committed by the person to whom the office has been entrusted.”[iii]

Reason behind making Directors liable for certain acts of the company: they act as the agents, trustees, and the brain of the company

Directors are persons selected to manage the affairs of the Company for the benefit of the shareholders. It is an office of trust, which if they undertake, it is their duty to perform fully and entirely.[iv] This two-fold character of the directors has been well expressed by Lord Selbourne in Great Eastern Railway Company v. Turner,[v] wherein it was observed that “the Directors are the mere trustees or agents of the company–trustees of the company’s money and property; agents in the transactions which they enter into on behalf of the company.” Directors are not employees of the company, but persons responsible for the conduct of its affairs, and act in a fiduciary capacity vis-à-vis the company. The position of Directors as trustees of the company was made clear in the case of Albert Judah Judah vs. Rampada Gupta and Ors.[vi], wherein it was observed that Directors do not hold the position of trustee incomplete sense and it cannot be said that the entire law relating to trustees is applicable upon them, however, a Director may be made liable “for breach of trust when he misapplies the fund and misappropriated any assets.” Hence, any fraudulent actions in relation to the company’s financial transactions with third parties can be attributed to the Directors who act as the brain of the company. In the case of Bath v. Standard Land Co. Ltd.[vii], it was rightly observed by Hon’ble J. Neville that the Board of Directors is the brain of the company, and the latter can act only through its Directors.

Can directors or members of a company be held vicariously liable for acts of the company where such legal fiction is not expressly created by the statute?

The clarity on this point has been brought by the Hon’ble Supreme Court in the case of HDFC Securities Ltd. and Ors. vs. State of Maharashtra and Ors.[viii], wherein it was held that the Indian Penal Code, 1860 does not envisage vicarious liability of the director or other members of the company for an offence committed by the latter. It is necessary that such offence must be specifically stated in the statute and legal fiction is created therein, for eg. Negotiable Instruments Act, 1881. Further, the court placed reliance upon the observation of the court in the case of S.K. Alagh v. State of Uttar Pradesh and Ors.[ix], wherein it was laid down that “Indian Penal Code, save and except some provisions specifically providing therefor, does not contemplate any vicarious liability on the part of a party who is not charged directly for the commission of an offence.” Further in Maksud Saiyed v. State of Gujarat and Ors.,[x] Hon’ble Supreme Court observed that the Indian Penal Code does not contemplate the vicarious liability of Managing or other directors of the accused company.

Statutes must expressly and indisputably contain provisions attaching such vicarious liability.[xi] Further, it is obligatory on part of the complainant to make specific allegations against the Directors in order to make them vicariously liable. In the case of Sunil Bharti Mittal v. Central Bureau of Investigation[xii], Hon’ble Supreme Court held that “the concept of ‘vicarious liability’ is unknown to criminal law.” The Court went on to state that there is no specific allegation made against such persons which is mandatory to attach such liability.

Circumstances warranting personal liability of directors on account of non-payment of debt

Dishonour of cheque under Negotiable Instruments Act, 1881

A director of a company can be made personally liable in case of dishonour of a cheque drawn under the name of a company. Explanation (b) to Section 141 of the Act defines a director in relation to a firm as the “partner of the firm”, and in the case of a company, it is defined as a person appointed to the Board of the company.[xiii] Such liability is attached to a director of the company by virtue of Section 141 of the Negotiable Instruments Act, which states that:

“If the person committing offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly”.

Principles laid down by Courts to make Directors of a company liable in case of dishonor of cheque:

The Director of a company does not become automatically liable for offence committed on behalf of the company, and it is necessary to make specific averments in this respect.[xiv] The rules for such averments have been laid down by Hon’ble Supreme Court in the case of K. Ahuja v. V.K. Vora[xv]:

If the person accused of the offence of dishonour of cheque is a Managing Director or Joint Managing Director, it is sufficient to state that the accused holds such position in the company, and it is not necessary to specifically aver that he is responsible for the conduct of the business of the company, as it is implied that a Managing Director is in charge of the affairs of the company.

Where such Director accused is the signatory of the cheque in question, there is no need to make a specific averment that such Director is responsible for the conduct of affairs of the company.

The Director must be responsible for conduct of business and affairs of the company, at the time when the cheque was drawn.[xvi] Hon’ble Supreme Court in the case of Girdhari Lal Gupta vs. D.H. Mehta[xvii] observed that such a person in charge of business must be in overall control of the day-to-day affairs of the company. Therefore, a Non-Executive Director, who does not involve himself in the day-to-day management of the affairs of the company[xviii] and is not responsible for the conduct of the business of the company[xix] can only be held vicariously liable for such act, omission or commission by the company where it:

Occurred with the knowledge of such Non-Executive Director, or

Is attributable through the Board processes. or

Occurred with the consent or connivance of such Director, or

Where such Directors did not act diligently.[xx]

Where such Non-Executive Director does not initiate any action upon his knowledge of such wrong being committed in the name of the company. The knowledge must flow from processes of the Board, and where any follow up action is taken by the Non-Executive Director, it must be recorded in the minutes of the Board[xxi]

The statutory provision adumbrated in Section 141(1) is required to be strictly construed for the reason that it is a penal statute.[xxii] Penal statutes providing constructive vicarious liability should be construed much more strictly- When conditions are prescribed for extending such constructive criminal liability to others, the courts will insist upon strict literal compliance. There is no question of inferential or implied compliance.[xxiii]

Defenses available to directors

Proviso to Section 141(1) of Negotiable Instruments Act, 1881 provides for a valid defense in favour of the Directors if they prove that they did not have the knowledge of such offence being committed, or they exercised due diligence in order to avoid such dishonour of cheque.

Other valid defense is that the Director was not responsible for the day-to-day affairs of the company. As stated above, a Non-Executive Director shall not be liable for an offence committed by the company if he had no knowledge of it. Another defense on similar lines is that the Director did not hold such a position in the company at the time when such cheque was drawn. It is rightly observed by Hon’ble High Court of Chhattisgarh that “the mere fact that at some point of time, an officer of a company had played some role in the financial affairs of the company, will not be sufficient to attract the constructive liability under Section 141 of the Act”.[xxiv] In the case of Gunmala Sales Pvt Ltd v. Navkar Infra Projects Pvt Ltd.[xxv]Hon’ble Supreme Court held that the Directors can escape liability if there is incontrovertible proof that they were not involved in the commission of the offence due to resignation, prolonged illness etc.  

Another objection that can be raised by the accused Director is that the complaint for dishonour of cheque is not made in accordance with Section 138 r.w. Section 141 of the Negotiable Instruments Act, or the averments are not made according to the aforesaid rules laid down by the Supreme Court in this respect.

Liability for fraudulent conduct of business under Companies Act, 2013 and Insolvency & Bankruptcy Code, 2016

To illustrate, suppose a person “A” makes a business transfer to a company incorporated for this purpose, and in which A is the Managing Director and his wife as the Director. “A” conducts business in a manner leading to serious financial losses to the company. He takes shares and debentures for the price, creating a charge upon the company’s assets, and still continues to pay the Directors dividends. In spite of this, “A” orders goods worth £6,000 on credit.[xxvi] Now the Company becomes insolvent and is being wound up, then who will be liable to repay such debts? This is where the liability of Directors is pitched in and they are held vicariously liable for exploiting their position as the trustee of the Company and operating the business of the Company with an intent to defraud its creditors. In the present case, it was held that “if a company continues to carry on business and to incur debts at a time when there is to the knowledge of the directors no reasonable prospects of the creditors ever receiving payments of those debts, it is, in general, a proper inference that the company is carrying on business with the intent to defraud.”[xxvii] Winding up of the company does not absolve the directors from their criminal liability.[xxviii]

                                        Click Above

Requirements for affixing liability to the Directors of the Company for fraudulent conduct of business during winding up proceedings under the Companies Act, 2013

There must be a prima facie case that the business of the company is being carried with intent to defraud creditors of the company.[xxix]

An application is required to be made to the Tribunal by the Official Liquidator or creditor or contributory to the company.[xxx]

That the fraudulent trading is with the knowledge of the Director and such intent to defraud is attributable to him. Such a person who knowingly does such fraudulent activity is liable for action under Section 447 of Companies Act, 2013 which prescribes punishment for persons guilty of fraud.

Such fraudulent trading took place at the time when the concerned Director was responsible for managing the affairs of the company.

Powers of the tribunal under Companies Act, 2013

Declaration of liability: As per Section 339 of Companies Act, 2013, on fulfillment of the abovementioned requirements, the Tribunal may declare that the Director, Manager or any other people so involved will be liable and personally responsible, without any limitation of liability, for all such debts and liabilities as directed by the Tribunal.[xxxi]

Make provisions to give effect to the declaration: The Tribunal may further pass directions to effectuate such declaration, and for this purpose make provision for creating charge or interest in any debt, obligation, mortgage or charge on the assets of the company with him.[xxxii]

Criminal Liability for breach of trust or misfeasance: Section 340 of the Companies Act, 2013 empowers the Tribunal to initiate inquiry and order for repayment or contribution towards the assets by the concerned Director, Manager, Liquidator or Officer of the company for his act of misfeasance, misappropriation of funds or breach of trust. Section confers criminal liability in such cases of breach of trust or misfeasance. As per Section 341 of the Act, the Tribunal is empowered to pass an order under Section 339 and Section 340 of the Act against the partner of the firm or director of the company.

Requirements for making Directors liable for fraudulent trading under Insolvency & Bankruptcy Code, 2016

There must be a prima facie case that the business of the corporate debtor is being operated with the intent to defraud its creditors or for any fraudulent purpose. If there is a strong prima facie which turns out to be correct, then directors have deliberately indulged in sharp practice to defraud creditors.[xxxiii]

The Director knew or was reasonably expected to know, that the commencement of the Corporate Insolvency Resolution Process (“CIRP”) cannot be avoided.[xxxiv] This period when the Directors know that there is no reasonable prospect to avoid the initiation of CIRP is known as the ‘twilight period’. The phrase ‘twilight period’ is not laid down in any statute, but is a common business connotation. In such a period, directors must act diligently to avoid any loss to the assets of the corporate debtor as it would have a major impact on the outcome of the insolvency proceedings.

Such Directors did not exercise due diligence in order to minimize the potential loss to the creditors from such wrongful trading.[xxxv] The rationale behind this is to put an obligation on directors of the company to take necessary action at the beginning when the financial crunch starts to cripple by conducting sufficient due diligence. This provision warrants vigilance from the directors at the very onset of financial distress, or they shall be held liable even if no dishonest intention is attributable to them.

There must be a dishonest intention or knowledge on part of the Director of the company,[xxxvi] with respect to the fact that the company will not be able to meet its liabilities as and when they fall due, and continues to run the business recklessly.

Where a company continues to incur debts when in the opinion of a reasonable businessman, holding the position of a director, there is no reasonable prospect that the creditors receive the payment when it falls due, there is a sufficient inference that the business is being carried recklessly.[xxxvii] To precisely state it in the words of Buckley J.: “In my judgment, there is nothing wrong in the fact that directors incur credit at a time when, to their knowledge, the company is not able to meet all its liabilities as they fall due. What is manifestly wrong is if directors allow a company to incur credit at a time when the business is being carried on in such circumstances that it is clear that the company will never be able to satisfy its creditors. However, there is nothing to say that directors who genuinely believe that the clouds will roll away and the sunshine of prosperity will shine upon them again and disperse the fog of their depression are not entitled to incur credit to help them to get over the bad time.”[xxxviii]

The transactions in question were not made in the ordinary course of business of the company and must be proved to be of fraudulent nature by the Resolution Professional. In Anuj Jain vs. Axis Bank Limited and Ors.[xxxix] it was held by Hon’ble Supreme Court that “where a transaction is made in the ordinary course of business and in absence of any contrary evidence to show that they were made to defraud the creditors of the ‘Corporate Debtor’ or for any fraudulent purpose, on the mere allegation made by the ‘Resolution Professional’, it was not open to the Adjudicating Authority to hold that the transactions come within the meaning of ‘fraudulent trading’ or ‘wrongful trading’ under Section 66.”

               Click Above

Power of the adjudicating authority in case of violation of Section 66 of the Code

Section 67 of the Code empowers the Adjudicating Authority to:

Provide for liability of the person responsible, to be a charge on any debt or other obligation, due from the corporate debtor to the person liable, or on or mortgage or interest in a mortgage on assets of the corporate debtor held or vested in him.[xl] Such order is limited to the debt with respect to creditors who have been defrauded.[xli]

Pass such directions necessary to give effect to the above-mentioned order.[xlii] Such direction may also require that the debt owed to the defrauded creditor shall be placed at a prior rank in the waterfall mechanism provided under Section 53 of the Code.[xliii]

Conclusion

Traits of diligence, honesty, and transparency in managing the affairs of the company constitute essential conditions for holding the position of a director. In pursuance of the above, it is important that directors of the company should take immediate action in case of the abovementioned offences committed by the company that attracts liability of directors. Furthermore, it is important that such action and the objection to the fraudulent trade must be duly recorded in the minutes of the board meeting in order to escape liability posed by the statute.

References

[i] The legal fiction of corporate veil was laid down by House of Lords in Solomon vs Solomon [1897] AC 22 Case

[ii] The New Fleming Spinning And Weaving Company Ltd. vs Kessowji Naik And Ors. (1885) ILR 9 Bom 373

[iii] Ibid- para 15

[iv] York and North Midland Ry. Co. v. Hudson (1845) 16 Beav 485 Roumilly

[v] (1872); 8 Ch. A. 149

[vi]  MANU/WB/0200/1959

[vii] (1910) 2 Ch. 408 at p. 416

[viii] (09.12.2016 – SC) : MANU/SC/1573/2016

[ix] MANU/SC/7162/2008 : (2008) 5 SCC 662

[x] MANU/SC/7923/2007 : (2008) 5 SCC 668,

[xi] Ibid

[xii] MANU/SC/0016/2015 : (2015) 4 SCC 609

[xiii] Section 2(34) of Companies Act, 2013

[xiv] S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Ors. (20.02.2007 – SC) : MANU/SC/7125/2007

[xv] MANU/SC/1111/2009

[xvi] SMS Pharmaceuticals v. Neeta Bhalla and Anr.(MANU/SC/7125/2007)

[xvii] MANU/SC/0487/1971

[xviii] Pooja Ravinder Devidasani v. State (MANU/SC/1177/2014)

[xix] C.S. Raju v. SEBI (MANU/SC/0598/2018)

[xx] Section 149(12)(ii) of Companies Act, 2013.

[xxi] http://www.mca.gov.in/MinistryV2/management+and+board+governance.html

[xxii] K. Srikanth Singh v. North East Securities Ltd. OR Anil Rice Mills and Ors. vs. State of Chhattisgarh and Ors. (16.12.2011 – CGHC) : MANU/CG/0370/2011

[xxiii] K.K. Ahuja v. V.K. Vora (MANU/SC/1111/2009)

[xxiv] K. Srikanth Singh v. North East Securities Ltd. OR Anil Rice Mills and Ors. vs. State of Chhattisgarh and Ors. (16.12.2011 – CGHC) : MANU/CG/0370/2011

[xxv] Criminal Appeal Nos.2261-2265 OF 2014

[xxvi] Facts of English case of Re William C. Leitch Bros Ltd. Re 1932 (2) Ch.71

[xxvii] Maugham J. in the case of Re William C. Leitch Bros Ltd. Re 1932 (2) Ch.71

[xxviii] Satellite Television Asian Region Ltd. and Ors. vs. Kunvar Ajay Designer Saree P. Ltd. (14.11.2008 – GUJHC) : MANU/GJ/0884/2008

[xxix] Ibid

[xxx] Section 339(1) of Companies Act, 2013

[xxxi] Section 339(3) of Companies Act, 2013

[xxxii] Section 339(2)(a) of Companies Act, 2013

[xxxiii] Re: IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY C, A, W, M and McE (30.11.2007 – UKNI): MANU/UKNI/0001/2007

[xxxiv] Section 66(2)(a) of IBC

[xxxv] Section 66(2)(b) of IBC

[xxxvi] Section 66(1) of IBC.

[xxxvii] Philotex (Pty) Ltd and Others v. Snyman and Others; Braitex (Pty) Ltd. and Others v. Snyman and Others (13.11.1997 – SASC): MANU/SASC/0072/1997

[xxxviii] Re Carbon Developments (Pty) Ltd (In Liquidation) 1993 (1) SA 493 (A) at 504 A – C

[xxxix] 26.02.2020 – SC: MANU/SC/0228/2020

[xl] Section 67(1)(a) of Insolvency & Bankruptcy Code, 2016.

[xli] Nagendra Prabhu v. Popular Bank ((1969) ILR Ker 340.

[xlii] Section 67(1)(b) of Insolvency & Bankruptcy Code, 2016.

[xliii] Section 67(2) of Insolvency & Bankruptcy Code, 2016.

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[ticket4futball]

Russia’s Euro 2020 Organizing Committee agrees on volunteer exchange with two countries

Hungary's Budapest and Spain's Bilbao will send five volunteers every that will remain in St. Petersburg in June, while Russia will likewise send five individuals to the Hungarian and the Spanish urban communities, as indicated by the Sorting out Board of trustees. Here you can book the Russia Euro Cup Tickets online for Euro 2020.

MOSCOW, January 30 Russia's Euro 2020 Arranging Board of trustees has agreed with sorting out advisory groups from two nations on a volunteer trade at the titles, says Council head Alexey Sorokin.

In September 2019, at that point Agent PM and the Euro-2020 Getting sorted out Advisory group's supervision board executive, Olga Golodets revealed that, following the Association of European Football Affiliations (UEFA) delegates' assessment visit to St.

Petersburg, the Association will investigate permitting Russian volunteers to work abroad during the titles. After one month, Sorokin revealed to TASS that the Board and the UEFA had started building up a volunteer trade program.

Altogether, somewhere in the range of 5800 individuals from 70 nations elected to aid St. Petersburg during the Euro 2020. The volunteer supervision group picked 1000 individuals who will start preparing in April.

"We have agreed with a few nations," Sorokin said. "As it turned out, a few nations had explicit laws on volunteering which rendered the trade incomprehensible. All things considered, we arranged the trade with the individuals who concurred."

The Board press administration disclosed to TASS that both Hungary's Budapest and Spain's Bilbao will send five volunteers every that will remain in St. Petersburg in June, while Russia will likewise send five individuals to the Hungarian and the Spanish urban areas.

The Advisory group, together with the Volunteer Habitats Affiliation, will currently pick the challenge victors, who will be given visa help and will likewise have their vehicle and convenience costs remunerated inside Russia's volunteer portability program.  The press administration noticed that Russia may send its volunteers to different nations too.

The 60th commemoration European Football Title will happen in 12 European urban communities St. Petersburg, London, Munich, Baku, Rome, Bucharest, Dublin, Copenhagen, Bilbao, Glasgow, Budapest and Amsterdam. St. Petersburg will have three gathering stage matches and one quarter-last. The Title will happen between June 12 and July 12 this year.

The Russian national group will play with Belgium, Finland and Denmark. The previous two matches will happen in St. Petersburg, while the last mentioned in Copenhagen.

We are offering Euro 2020 Tickets so Euro 2020 fans can get Finland vs Russia Tickets through our trusted online ticketing market place. Ticket4football.com is the most reliable source to book Euro Cup tickets.

[wutbju]

In a move that’s been more than two years in the making, Bob Jones University announced Wednesday it would regain its federal tax-exempt status on March 1, more than three decades after the IRS stripped its nonprofit status following a landmark U.S. Supreme Court ruling.

The issue in the court case was the university’s refusal to allow interracial dating or marriage among students, staff or faculty of the university, a rule it has since abandoned.

The conservative Christian university dropped its interracial dating ban in a nationally televised interview with past president Bob Jones III on CNN’s Larry King Live in 2000. In 2008, past President Stephen Jones, great-grandson of evangelist and university founder Bob Jones, apologized for BJU’s past racial discrimination.

But the university hadn’t sought to reinstate its tax-exempt status until 2014 after Steve Pettit took over as the school’s fifth president in its 90-year history.

“Organizing as a tax-exempt entity is something BJU has needed to do for quite some time,” Pettit said.

In his first meeting with the university’s Cabinet, Pettit said he believed it was appropriate for BJU to seek its tax-exempt status because the university doesn’t believe the positions it once held about race.

Pettit called the university’s racist policies a social issue that was not biblical.

“The Bible is very clear,” Pettit said as he announced the change to the university Wednesday night. “We are made of one blood.”

Bob Jones University lost its tax exemption after a 13-year battle with the IRS over whether the university’s policies against interracial dating precluded it as a non-taxable religious educational institution. The university didn’t admit any black students until 1971, 17 years after Brown vs. Board of Education. It then wouldn’t admit any students who were in a mixed-race marriage and created rules to prohibit students from interracial dating.

The case rose to the Supreme Court, which ruled in 1983 that the IRS could revoke the university’s tax-exempt status because the government’s interest in eradicating racial discrimination from education overrode the university’s First Amendment rights to religious free speech.

The case has been cited many times through the years. Most recently, it arose in an exchange before the Supreme Court in the Obergefell vs. Hodges decision, which legalized gay marriage. After that decision, the IRS commissioner said the agency would not target the tax-exempt status of religious institutions that oppose gay marriage.

It’s taken two-and-a-half years for BJU to accomplish the reorganization because it used a complicated plan to split its organization into two entities with the university falling under the umbrella of its elementary school’s existing non-profit status to achieve its own, according to university statements and organization documents filed with the South Carolina Secretary of State and the IRS.

That existing nonprofit was called Bob Jones Elementary School, Inc. until last May, when it was renamed BJU, Inc.

The restructuring came after “consultation with legal counsel and accountants with many years of experience in assisting tax exempt organizations—as well as input from members of the BJU community and our congressional delegation,” Pettit said.

The change didn’t require IRS approval because its elementary school was already a nonprofit, though the university had formal correspondence and conversations with the IRS, said Randy Page, BJU spokesman.

The university is now listed as a 501(c)(3) nonprofit on the IRS website, said Michael Dobzinski, IRS spokesman.

What it means

Until now, if members of the community or alumni wanted to donate to the university, their gifts were only tax deductible if they gave to certain nonprofit arms of the university, such as its scholarship fund, art museum or athletic foundation.

Donors couldn’t give tax-deductible gifts to the university itself to help with capital campaigns or for university initiatives.

Most of the large gifts to the university recently, like a $500,000 gift from the Sargant Foundation in December and a $1 million anonymous gift announced last November, went toward its BJU Scholarship Fund, a nonprofit entity of the university.

Now donors’ gifts will be tax-deductible, Page said.

“It helps when you’re trying to raise money for an organization to have a tax-exempt status,” Page said. “That obviously helps your advancement folks, your development folks and those in the community – companies, individuals, alumni – to make it easier to donate to a nonprofit.”

The change wouldn’t affect students’ scholarships or grants and wouldn’t affect employees, he said.

The change levels the playing field between the university and other sister institutions when applying for grants, he said.

It also moves BJU from a for-profit college to a nonprofit classification with the U.S. Department of Education, “which is frequently perceived more favorably by the public,” Page said.

That change could prove important as the U.S. Department of Education has targeted for-profit colleges with added oversight in recent years and fined several for-profit networks of colleges under the Obama administration, which resulted in colleges like Corinthian College and ITT Technical Institute closing down.

And though the university operates debt-free and doesn’t plan to take on debt, it could potentially save through lower interest rates if it chose to take on debt, Page said.

How BJU will be structured

On March 1, Bob Jones University, Inc. will be renamed Bob Jones Education Group, Inc. and will remain the university’s taxable entity and will donate about half its assets to the non-taxable BJU, Inc.

The university’s assets will effectively be split between the two organizations.

BJU, Inc. will include the university and most of its facilities, the art museum, elementary school and child development center. BJU Press writers also will come under the umbrella of BJU, Inc.

The for-profit arm of the university – Bob Jones Education Group, Inc. – will include the BJU Press, University Cleaners and the Bob Jones Academy middle and high schools.

The university will still be governed by its 25-member Board of Trustees. The board will appoint a new eight-member board to govern Bob Jones Education Group.

The transition process began in late 2014 with a study of how to achieve tax exemption. Last May 5, the Board of Trustees approved the final plan for pursuing tax exemption and the administration has been working to implement it since then.

At the same time, the university has been seeking regional accreditation through the Southern Association of Colleges and Schools Commission on Colleges. The university, which is listed as a candidate for accreditation, notified the commission of its potential changes, which wouldn’t affect its candidacy, Page said.

[optometrist0]

Optometry Student Jobs

Contents

2017. she was

Vision care professionals

From around the world attended

Much more. while the initial

They also diagnose

They fear losing a job over mistakes or struggle to find one … to educate the fourth-year students in the Ohio State University College of Optometry who, under the supervision of Nerderman, staff the clinic on its three open days a week.

An early experience I’m grateful for: Shortly after graduating optometry school I returned to … so you have to be able to improvise and get the job done. I got my …

176 Optometry Student jobs available. See salaries, compare reviews, easily apply, and get hired. New Optometry Student careers are added daily on SimplyHired.com.

Job Opportunities; Student Opportunities; … Student Opportunities … check with your School of Optometry, or contact our IHS Student Coordinator.

"AOAExcel is a very valuable tool especially for a young OD coming out of school . I was fresh out of school and had limited experience regarding salary and partnerships, so I reached to AOAExcel to help with my search for employment. As a young OD, the benefits of AOAExcel are multi-fold; providing new perspectives, …

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I didn’t get the impression a discussion had taken place about how she would continue to get to work or what might happen now in her job, how long her …

When it began, Eyes on Optometry Group had one part-time university student working between classes. Twelve years later, Dr. Freddie Chow oversees a company with 20 staff and doctors who work at five locations in metro Halifax using …

“Our job is more supplementary,” said Michele Naruszewicz, fellow optometrist and Wilk’s wife. “(The students) are already in the program to learn how to be an …

Optometry Career And Job Resources The University of the Incarnate Word Rosenberg School of Optometry offers career service resources specifically for our optometry students and alumni.

NewGradOptometry.com, … Student to New Optometrist – Crossing the Void March 23, 2018. … Optometry Jobs Post a job or find a job today.

Information on optometry student employment for job education and financial aid while attending UIWRSO.

Search Local Eye Site for the most Optometry Jobs, Ophthalmic Jobs, and Optical Jobs. The leading employment site for eye care professionals including Optometrists, Ophthalmic Technicians, and Opticians!

Carolyn M. Kolb, 2008 Sauk Prairie High School graduate, was awarded the doctor of optometry degree by the Illinois College of Optometry during its 174th commencement ceremony on May 20, 2017. she was awarded honors in all four …

The whereabouts of a 28-year-old Lincoln man reported missing Monday are still unknown. Craig Baxter, an optometry student, hasn’t been seen since he left his sister’s Lincoln home early Monday, heading to his first optometry rotation …

The owner of Thomas Eye Center in Athens, Stuart Thomas, was appointed to the board of trustees at his alma mater, Southern College of Optometry. After receiving his bachelor’s degree in psychology from the University of Georgia …

Feb 18, 2015 … Many students complete dual degrees when in optometry school. Some of these degrees include a Ph.D. or M.S. in Vision Science. These additional academic achievements can go a long way in securing non-clinical careers. In addition, many of us are also scientists, who have obtained a degree in some …

I am an optometrist and needs a part time job. I am an optometrist who needs a part time job in Sunyani or Kumasi since i would be doing my internship in Sunyani or Kumasi.Please contact me if… h in Mercer Island, Washington …

They keep students as trainees for more than a year and provide them with a stipend, and later on when offering them a permanent job, ask them to sign a bond saying that they will have to work there for another three to five years. …

Trivers Associates of St. Louis is an architect of an optometry … more than 3,400 jobs in agriculture, health care, manufacturing, technology and other industries. The largest of the grants announced Wednesday is going to the …

As more students head back to school and parents take them shopping for the latest gadgets, a warning is out about eye strain. All that time in front of screens can affect eye health and even learning. Eye Spy Optometry’s Dr. Mark Ross …

More than 7,700 optometrists, vision care professionals, vision scientists and optometry students from around the world attended this prestigious meeting. At this year’s meeting, DeVries was awarded Fellowship in the American Academy …

Midwestern University recently welcomed the inaugural class of 66 optometry students to its Downers Grove Campus. Students enrolled in the University’s Chicago College of Optometry (CCO) will earn a Doctor of Optometry (O.D.) …

To address this need, Midwestern University is pleased to announce the establishment of the College of Optometry-Illinois on the University’s Downers Grove Campus. The University has received approval from both the Illinois Board of …

Apr 9, 2014 … The algorithm considers key employment factors such as location, contract type ( full-time, part-time or fill-in), specialty experience, corporate culture, personality and much more. while the initial launch is designed for optometrists and optical staff, ophthalmologists and ophthalmic technicians will be …

HIGH POINT — Buoyed by the growth of its graduate programs, High Point University is looking to add more … The federal agency predicts optometry jobs will grow by 17 percent over the next decade. An optometry school probably …

607 Optometric Assistant jobs available on Indeed.com. Optometric Assistant, Optometric Technician and more!

Sep 4, 2013 … 226562_10200162860207558_1273380183_n An increasingly common path that you'll see a lot of recent optometry new grads taking is accepting several part time job offers and working in between them. Looking at this scenario from the surface, we can deduce that having more than one job also means …

Accept applicants or reach out to our list of optometrists with resumes.

Information for optometry students seeking optometry jobs, information on optometry salary and potential careers across the USA.

Information for optometry students seeking optometry jobs, information on optometry salary and potential careers across the USA.

Find Optometry Jobs Available In Your Area. Apply Now!

Information on optometry student employment for job education and financial aid while attending UIWRSO.

Jun 6, 2017 … Not everyone may want to get a job or be able to work during school, but I would encourage students to get out to different practices and shadow, especially in practices that have a specialty that you are interested in. It makes going through school easier, because you get that tangible experience.

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from http://bestoptometrists.net/optometry-student-jobs-3/

[oneminutetoeleven]

Already posted this on Twitter but...

Sometimes I think about the state of the modern Conservative Party and think of how much Edmund Burke would hate them for all the shit they do for ideological rather than pragmatic reasons.

I mean Brexit is hardly change to conserve: it'll be incredibly damaging to the social organism as we know it - think about the ideological fervour the single-issue brexit party stirs up? Hardly pragmatic response to the changes in the needs of society.

I think this, miserably, wondering what he thinks of demagogues like Farage irresponsibly advocating the delegate model of representation for MPs.

I think this as I see people scoff at the idea of an expert telling people that they've made a bad decision and wonder how everything went so deeply, deeply wrong

Of course, thats before I remember Burke was a Whig, so probably thought Tories were shits anyway.