Among the various “squeeze-out” or “freeze-out” tactics that the Texas Supreme Court specifically noted in Ritchie v. Rupe for which “Texas law should ensure that remedies exist to appropriately address such harm when the underlying actions are wrongful” is withholding payment of, or declining to declare, corporate dividends. The Supreme Court recognized that a common complaint by those alleging shareholder oppression relates to the corporation’s declaration of dividends, including the failure to declare dividends or the failure to declare higher dividends.
The right to corporate dividends is clearly a legal right that the individual shareholder has as against the corporation. The Texas Supreme Court pointed out in Ritchie v. Rupe that “that shareholders already have a right to receive payment of a declared dividend in accordance with the terms of the shares and the corporation’s certificate of formation, and they can enforce that right as a debt against the corporation.” The corporation’s fiduciary duties as trustee also encompass the shareholder’s right to dividends. As the Supreme Court held in Yeaman v. Galveston City Co., the corporation, as trustee, has a fiduciary duty to preserve both the shareholder’s stock and “its fruits.” “Though considered a debt, as a shareholder’s dividends are payable by the corporation only on demand, its holding of them until the demand is in the nature of a trustee relation.”
The right to corporate dividends derives from the shareholders fundamental property right to share proportionally in the profits of the corporation. However, the right to dividends (unlike, say the right to vote) is not straightforward. There is no right to receive corporate dividends per se. Receipt of dividends is one way that shareholders can proportionally share in the profits of the company. Corporate dividends, by law, may only be paid out of the company's "surplus," meaning the net profits in excess of the par value of the stock. The directors of the corporation must decide how much of that surplus should be distributed to the shareholders and how much should be retained. There are a host of legitimate reasons to retain earnings within the corporation: funding capital expenditures, maintaining adequate working capital, creating a reserve against cashflow shortfalls, avoiding the necessity of debt, saving for a rainy day, etc. The decision to distribute profits or reinvest them into growing the company or save them for future use is a matter left to the discretion of the board of directors to which the business judgment rule applies. Court decisions involving the declaration of corporate dividends tend to give unusually wide latitude to the judgment of the board of directors.
Furthermore, most closely-held corporations do not pay out dividends, or at least do so very, very rarely. The payment of corporate dividends results in a tax penalty. Corporate profits are taxed when received by the corporation, and are then taxed again when received by the shareholders. Currently, ordinary dividends are taxed at the long-term capital gains rate that maxes out at 20%, but double taxation is still a burden. Therefore, closely-held corporations ordinarily pay out all profit to shareholders in the form of salary, bonuses, and perks, which are deductible expenses to the corporation and are taxed once, as ordinary income to the shareholder-employees. Most small corporations can qualify for the Subchapter-S election, in which all corporate profits are taxed at the shareholder level (whether or not paid out to the shareholders) and the corporation pays no taxes. However, in practice, even most Sub-S corporations choose to pay out profits as compensation, rather than dividends.
The corporation's control over dividend declarations can result in significant unjust treatment of minority shareholders in closely-held corporations. When some shareholders do not work in the company or are fired, then the failure to pay dividends deprives those shareholders of their right to share proportionally in the corporation's profits. Payment of corporate profits outside of the dividend process creates the opportunity for majority shareholders to receive a disproportionate share of the distribution of profits. Efforts by majority shareholder to squeeze out minority shareholders almost always involves corporate dividend decisions: Typically, the squeeze-out is accomplished by firing the minority shareholder or inducing him to quit, refusing to pay dividends, and diverting profits that would have been paid to the minority shareholder to the majority shareholder through increased salary, personal benefits, payments to his family, or outright theft. If the closely-held corporation has elected Sub-S status, then the minority shareholder's loss of income will be coupled with tax liability on corporate profits, which he will not be able to access to pay the taxes. This fact pattern is evidence in the classic shareholder oppression case, Boehringer v. Konkel.
Under the former shareholder oppression doctrine, wrongful manipulation of dividends in order to harm minority shareholders was treated a part of a pattern of oppressive conduct and remedied, usually, with a compulsory buy-out order. The Texas Supreme Court in Ritchie v. Rupe struck down the shareholder oppression doctrine in Texas and held that aggrieved shareholders must rely of other remedies and causes of action to address the wrongful manipulation of corporate dividends. Prior to the advent of the shareholder oppression doctrine, many Texas cases had recognized the shareholder's fundamental interests in receipt of dividends and had held that in an appropriate case, Texas courts had the power to order the payment of corporate dividends. The leading case was the landmark 1955 Texas Supreme Court decision in Patton v. Nicholas, which held that the suppression of dividends for a malicious purpose may be remedied by equitable relief, in that case a mandatory injunction to pay dividends. That case was followed in 1956 by the court of appeals decision in Morrison v. St. Anthony Hotel, applying the same cause of action and holding that a damages remedy was available to former shareholders. The Texas Supreme Court's (mis)reading of the Patton opinion in Ritchie v. Rupe raises some significant uncertainty regarding whether a suppression of dividends claim must sometimes be asserted as a derivative action, rather than a direct claim.
In this section, we explore the shareholder's cause of action for suppression of dividends, including a look at the unique issues involving suppression in Subchapter-S corporations. We also examine Argo Data Res. v. Shagrithaya, one of the last shareholder oppression doctrine cases, which was reversed at the same time as Ritchie v. Rupe in light of Ritchie's treatment of dividend claims. We also explore challenging a corporate policy against payment of dividends and analyze the shareholder's cause of action arising out of the payment of constructive dividends to the majority. The individual shareholder's right to dividends arise from the same rights and duties that underlie the breach of trust cause of action, and many oppression scenarios involving wrongful manipulation of corporate dividends may be remedied through a claim for breach of trust. In certain circumstances, wrongful manipulation of dividends may also give rise to a claim for stock conversion.
|About the author: Houston Business Lawyer Eric Fryar is a published author and recognized expert in the field of shareholder oppression and the rights of small business owners. Eric has devoted his practice almost exclusively to the protection of shareholder rights over the last 25 years. Learn more||
[link to next article]>
This post represents our opinion regarding the relevant shareholder oppression and minority ownership rights law. However, not everyone agrees with us, and the law is changing quickly in this area. This page may not be up to date. Be sure to consult with qualified counsel before relying on any information of this page. See Terms and Conditions.