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To summarize it, I'll give an example: I'm Bill Gates. I own Microsoft. On a desk, there's a Microsoft Surface that is branded by my company. I decide to take it home and never bring it back, although I didn't buy it personally, and the company's budget was spent on it.

Would that be a theft?

Ryan M
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John
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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – Pat W. Apr 07 '23 at 14:40

10 Answers10

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Yes.

Let's assume this anecdote takes place while Gates was CEO. Bill Gates doesn't own all of Microsoft, and as an officer of the company, he owes a fiduciary duty to act in the best interests of the company and its shareholders as a whole. Taking the company's property for personal use breaches that fiduciary duty.

Now, in this particular hypothetical, Gates might have a decent argument that, as a public figure who can afford any piece of technology he desires, him being seen using a Microsoft Surface actually is acting in the company's best interests. But that wouldn't apply in the hypothetical scenario where he took, say, a printer.

Ryan M
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    It might also be tax fraud. The property could be considered part of your remuneration, and hence needs to be declared as a taxable benefit. – Paul Johnson Jan 22 '21 at 21:43
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    or he might take it home for home office purpose, so it should better be part of his last paycheck (or bought for a dollar) – Trish Jan 23 '21 at 10:27
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    I feel this answer is muddling two separate issues. Gates taking the item for himself is theft because the property doesn't belong to him. Gates not acting in the best interests of the shareholders as a whole is a breach of fiduciary duty. Theft and breaching fiduciary duty are separate matters even though it happens that in this case Mr. Gates might do both. The former is a crime and a case would be brought by a prosecutor. The latter is a civil breach and would most likely be brought by shareholders. This answer implies it is theft because it is a breach of fiduciary duty, which is wrong. – JBentley Jan 23 '21 at 14:10
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    @JBentley what I was trying to get at is that Gates could not simply authorize himself to take whatever company property he likes by exercising his authority as CEO or shareholder (even if he were the majority shareholder), because doing so would breach his fiduciary duty. – Ryan M Jan 23 '21 at 20:16
  • Yes, in that sense the point makes sense. It might help to make that a bit clearer in the answer. It is theft because there has been appropriation of property belonging to another with intention to permenantly deprive (UK definition but I assume the USA is broadly similar). The issue of fidiciary duty means that Mr Gates will incur civil liability if he attempts to avoid theft by transferring ownership to himself. – JBentley Jan 23 '21 at 20:25
  • Note that the fiduciary duty to the shareholders was invented and the result of a PR push in the past few decades, and is not actually enshrined in law. – Riking Jan 25 '21 at 03:25
  • The "never bring it back" is also important. I can take home company equipment to do my job, it's only theft IMO if I don't give it back either (a) when asked for and/or (b) when I leave the company. As an example my company gave me a laptop fully intending me to take it home. They also provided various books and other materials. If I was going to WFH I might take a desktop PC or monitor home (though I'd probably tell my boss or at least leave a note on my desk). – gman Jan 25 '21 at 12:40
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    It's theft if you take it with the intention of not giving it back. Or if you dishonsetly approrpriate it later. If you intend to give it back and then change your mind I don't think that can retrespectivly make your past actions thefty. – bdsl Jan 25 '21 at 15:13
  • What if he owned ALL of the company? It suddenly stop being a crime? According to the logic of this question it would. – Dan M. Jan 25 '21 at 17:24
  • @JBentley re: intention to permanently deprive - how would the situation change if the stolen property in question was not a physical object but software? If Bill Gates had a pirated copy of Microsoft Office running on his own computer, would that still be theft? His possession of that software does not prevent anyone else from having it. – Darrel Hoffman Jan 25 '21 at 18:33
  • @gman That is incorrect at least under UK law. What matters is whether you intended to permenantly deprive, and "permenantly" here can include an intention to treat the item as your own even if you have an intention to return it upon being asked. In your scenario you'd be ok if the company had allowed you to take the laptop home, but there's potential theft if they had not. Plus the comment below yours is correct, so "it's only theft if I don't give it back [after some subsequent event]" isn't right. What matters is your intention at the moment you took it. – JBentley Jan 25 '21 at 19:27
  • @DarrelHoffman That would be copyright infringement rather than theft I believe. – JBentley Jan 25 '21 at 19:30
  • @jbentley, nothing I said suggested I didn't intend to give it back. In fact my (b) implies I intended to give it back – gman Jan 25 '21 at 23:24
  • @gman Yes, but you also wrote "it's only theft IMO if I don't give it back...". My point is that whether you give it back is not part of the test for theft, so that quote is incorrect. Your intention to give it back is also not part of the test. The test is whether you intended to permenantly deprive. Despite the word "permenantly", this test can be satisfied by temporary deprivations i.e. borrowing, if the effect is that you treat the item as your own (see for example R v Scott [1987] Crim LR 235 where the defendant stole curtains intending to return them the next day to claim a refund). – JBentley Jan 26 '21 at 01:31
  • @gman To contrive an example, you could take a laptop from work that you don't have permission to take, intending to return it when you leave the job. Meanwhile 2 years go by and you finally leave the job and return it. In that time the company bought a replacement laptop because they needed it for other purposes. A case can be made for theft here in spite of the fact that you both intended to, and did, return it. The important issue is that at the moment you took it, you intended to treat the item as if it were your own. – JBentley Jan 26 '21 at 01:34
  • @JBently, I never intended to treat it as my own and nothing in my comment suggested otherwise. I work for a company that trusts its employees. If they take something home the company assumes the employee is doing it do their job better. They don't micromanage equipment. If the employee never gives it back that would be theft but, as in my original comment, I said I intended to give it back either when asked or when leaving which is exactly what I've done in the past. – gman Jan 26 '21 at 09:10
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Yes

Even if the CEO is the 100% owner of a private company.

Bill Gates and Microsoft are different people: Bill’s stuff is not Microsoft’s stuff and vice versa. If Bill takes Microsoft’s stuff without permission with the intent of permanently depriving Microsoft of it, that’s theft. The fact that Bill has the power to authorize the taking doesn’t matter if he doesn’t exercise that power.

Of course, if Microsoft gave permission, that’s fine - providing everyone paid the right taxes. If Bill has the authority to give permission on behalf of Microsoft he has a fiduciary duty as a director to decide in Microsoft’s best interests - this is true whether he owns some, none or all of Microsoft.

Dale M
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    But if he owns it all, doesn't the authorisation automatically happen the moment he does something since he's the only authority? – JS Lavertu Jan 23 '21 at 14:56
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    @JSLavertu (IANAL this is not a legal advice etc) at least for limited liability company the thinks owned by company can be taken by creditors why things owned personally by stakeholders cannot. It would be at least piercing company veil and expose the stakeholder assets to the creditors. – Maja Piechotka Jan 23 '21 at 15:56
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    I would love to see even a single example of a 100% owner getting charged with theft for the example in the OP, or even something of significant value. – eps Jan 23 '21 at 16:35
  • @eps depending on circumstances and the lawyer-fu involved, a theft charge may or may not be preferrable to a tax evasion charge. – fraxinus Jan 23 '21 at 18:21
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    @eps if the company is in bankruptcy proceedings, its assets may end being sold to pay off debtors. In that case a 100% owner can happily be charged by taking assets from the company (I do not know if it would be technically tech in Washington, I do know that in Spain is crime different from theft -alzamiento de bienes- and I think it to be more related with disobeying court orders). Whatever charges are pressed can depend on lots of things (e.g. if the judge suspects that there was some form of fraud in declaring the bankruptcy or that, if allowed, the owner will try more thefts). – SJuan76 Jan 23 '21 at 21:13
  • @erps happens a lot. Particularly when the taking happens shortly before a sale of shares or a liquidator or administrator being appointed or a court case being decided. – Dale M Jan 23 '21 at 22:11
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    But if he owns all of Microsoft, no one has standing to bring legal action against him for breach of his fiduciary duty (they might if Microsoft then goes bankrupt, but that will be because he no longer owns it). There’s still the tax issue, but that’s a different issue. – Mike Scott Jan 24 '21 at 17:52
  • @MikeScott Microsoft has standing as does the corporate regulator. – Dale M Jan 24 '21 at 22:04
  • @DaleM Can companies sue people without the CEO and/or shareholders authorizing the lawsuit? – user253751 Jan 25 '21 at 16:05
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    @SJuan76 That doesn't seem like a good example. If the company is bankrupt then the "100% owner" isn't really a "100% owner" anymore; the creditors hold claim to some portion of the company. – Ajedi32 Jan 25 '21 at 16:34
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    @Ajedi32 the owner is the owner until the property is sold or taken away (for example, to pay debts). If you buy a house using a mortgage, you own the house even if there is a debt attached to it. – SJuan76 Jan 25 '21 at 17:38
  • Bill Gates is Microsoft. – Galaxy Jan 26 '21 at 02:23
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    @SJuan76 no. If an administrator or liquidator is appointed then they have control of the company on behalf of the creditors- suits against such directors while not commonplace do happen – Dale M Feb 04 '21 at 11:13
  • You first say "Even if the CEO is the 100% owner of a private company." and later you say "Of course, if Microsoft gave permission, that’s fine", how does this work? If he owns the company 100%, who is he taking permission from? What is "Microsoft" in this case when he is the sole owner? – Syed M. Sannan Apr 07 '23 at 11:28
  • @Stranger who said he was the sole director? Directors don’t have to have shares, – Dale M Apr 07 '23 at 11:40
  • @DaleM Well I am quoting from your answer "Even if the CEO is the 100% owner of a private company." – Syed M. Sannan Apr 07 '23 at 11:40
  • @Stranger The CEO is not necessarily the only director or even a director at all. – Dale M Apr 07 '23 at 11:43
  • @DaleM Yeah but you said 100% ownership, a owner with 100% ownership is above directors, no? – Syed M. Sannan Apr 07 '23 at 17:23
  • @Stranger no, they aren’t – Dale M Apr 07 '23 at 21:32
  • @DaleM Welp, that's disappointing, I was wishing that there would be at least one place where a single authority can do whatever they want, and that would be in their company, but nope, they've got that complicated as well – Syed M. Sannan Apr 07 '23 at 21:46
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No. At least, not technically. Theft is taking without consent of the owner. The CEO is authorized to act on behalf of the company, and thus can give themself permission to take the computer. Even if the CEO isn't explicitly granted authority to distribute resources, there's a strong implicit authority. To substantiate a charge of theft, a prosecutor would have to show that the CEO had no reasonable basis for believing that they had the authority. While one could imagine a set of circumstances allowing that, in general it would be very difficult.

However, there are other charges that could be leveled, most notably embezzlement. The CEO has a fiduciary duty to act in the best interests of the shareholders. If they give themself permission to take the computer, that makes the act not theft, but the very act of giving themself permission, if done for malicious reasons, can be criminal. If they are using their authority to divert company resources for their own benefit, that can be embezzlement, although it's unlikely to be prosecuted for small amounts.

There are further issues in reporting it. The IRS, would probably consider this income, so not reporting it would be tax evasion. If it's a publicly traded company, then expenses must be reported. However, this is likely small enough to be a rounding error.

This doesn't apply just to CEOs. If an ordinary worker takes their laptop home and doesn't give it back, this is conversion/embezzlement, but probably isn't technically theft.

Acccumulation
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    It's probably worth remembering that not filing good tax returns is not theft. Returning a company car a day later than requested is not theft either. Unless there is policy/law/agreement that a thing belonging to the company is not within the remit of the CEO to do with as they wish, the OP's example is not theft. Couple more points? A very great deal of companies own no land nor facilities nor even rent any, so the idea that the property of a company has to remain physically with an entity that has no physical presence is of course absurd. – Giu Piete Jan 24 '21 at 08:10
  • If the answer to the OP's example were 'yes' taking mail would be theft. – Giu Piete Jan 24 '21 at 08:12
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Yes and No

Let's look at the case from some sides. Does Mr. Gates claim to own the laptop as he takes it home (like, does he sell it or give it away?) or does he treat it as a company-issued tool that just happens to be at his home? In the first case, he would probably need to do the paperwork for transferring the item from the company to his person to prevent that it is theft. In the second case, it just happens to be located at his home.

Now, assume it was just in his home for years to serve a valid work reason. Mr. Gates quits being a part of Microsoft because he becomes a pensioner. Now, there ought to be a document detailing that he has to turn in all company assets, get them transferred to him as a gift on top of the last paycheck or he buys the assets residing at his home. If the asset however stays and is not either given back, gifted to him, or bought (like, for a dime), now he suddenly commits theft.

But it would be up to Microsoft to sue for conversion, and I don't think they would want the bad PR from dragging their former CEO to court for a now obsolete piece of hardware. They might however want the confidential files and data that is stored on it and approach Mr. Gates to hand those over peacefully in the transition period.

Trish
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    Are you able to sue over theft? It's a criminal offense, so you'd be pressing charges, right? – nick012000 Jan 23 '21 at 11:13
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    @nick012000 that depends on where you are, jurisdiction-wise. – Trish Jan 23 '21 at 11:59
  • For a laptop they wouldn't bother. But if didn't leave a condo that was provided to him for his convenience during his tenure, or if he didn't hand over control of their registered domain name...you bet they'd come after him. – CCTO Jan 23 '21 at 19:14
  • @nick012000 also you can always sue to have the stolen item returned or replaced. – Trish Jan 25 '21 at 14:52
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Probably not

As mentioned by other answers, this is company property, not personal property. But the company will have processes where a certain level of authority allows you to take decisions about use of company assets, and the CEO is almost certainly that level. Microsoft are allowed to give Surfaces to influencers, or put mice or headsets in goodie bags at trade shows, or whatever, and someone authorises that.

You would need to update the company asset tracking register to track that it had been given to you, of course. Otherwise it remains company property. The practical impact of this is basically zero though - my company owns my laptop, but due to Covid it's not been on company premises for a year!

What will get you is tax. If you're given something by your company, or if you have the use of some facility that isn't work related, that is normally taxable depending on its value. Exactly how this goes will depend on your country.

Graham
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There ARE appropriate ways to profit-take. Use them.

A CEO/owner certainly can "profit-take" from a corporation. However the corporation must follow US tax law (since your presumption is Bill Gates/Microsoft). Note the same applies to an LLC which has elected corporate tax treatment.

  • As an employee, taking wages and benefits which could include a Surface tablet. This is taxed at normal "wage" tax rates (e.g. high).
  • Dividends can be paid to all shareholders. Obviously a CEO who owns 100% of the company's shares, gets all the dividends. Dividends are taxed at a lower rate. However then, Bill would need to take that cash-in-hand and buy the tablet at Best Buy.

The Board of Directors can set any amount they please. And the Board is elected by shareholders (1 share = 1 vote), so a majority-holding CEO simply decides who the Board is.

In any case, the payments are documented by appropriate tax paperwork such as a W-4 or 1099.

So yes. It's perfectly legit for the CEO to take home a tablet if the formalities are followed.

Harper - Reinstate Monica
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Yes, it would be a theft and the rub lies in the statement "never bring it back". The question is why would it ba a theft? Simply because a company is a different entity separate from its shareholders, even if the shareholder owns a majority of the shares. Under most modern countries corporate laws, there is a distinction between a "natural" person and a "legal" person. A "natural" person is a human being while a "legal" person is a legal entity. Thus, both are completely separate and taking the property from one to the other is theft. This is because the "legal" entity is owned by its shareholders who, under the agency principle, appointed a board of directors (or simply directors when there is no board in some countries) to run the company on their behalf with the goals usually set in modern countries' laws to "maximise shareholders' value". Taking this laptop and "never bring it back" is not within the scope of duty of the CEO nor does it serve the purpose of maximisation of shareholders' value nor the operational mandate received by the shareholders. The CEO could be compensated in kind by a resolution of the supervising board and thus receive the laptop and since it would be approved, it would not be theft. Another way would be an allowance to use the laptop at home presumably for work-related activities as long as the CEO is an employee of the company.

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YES

To add to what @Dale M mentioned earlier. Even if the CEO is 100% owner, he cannot simply take it. There are two sides of his "power of authorisation" - the objective and the subjective. The objective is he is able to do that for himself. The subjective part is the actual authorisation - basically him signing a document that allows him to take the property. In order for this power to be actually valid, both the objective and the subjective part must exist.

Martin Dimitrov
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  • Implied consent? He's the CEO. He can make a decision to give gifts and bonuses to employees, or old hardware the company doesn't need. .... (cont) – Stilez Jan 23 '21 at 11:43
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    ... If the CEO calls an employee into their office, and gives a laptop to the employee, and the employee understands its for long term use or "until requested back", the employee hasn't committed theft. Logically the CEO as director has authority to give a laptop to any employee - and he is an employee. But it could be breach of fiduciary duty perhaps. Or contract. Or against local laws requiring a 2nd director to approve, or all kinds of things. Or fraud is he faked the records or deceived over it. But if he approved it, implicitly or otherwise, maybe not theft – Stilez Jan 23 '21 at 11:46
  • In what jurisdiction has someone been charged with theft for taking something from a company they completely owned? These answers keep asserting this but I'm quite certain actual examples could be counted on one hand, if at all. – eps Jan 23 '21 at 16:32
  • @eps It is the same as in the answer. The objective part is the actual "crime" or violation of contract or w/e and the subjective part is somebody calling the person on him, be it prosecutor, who has to hold him accountable or w/e. And the answer above is valid for both completely owned by CEO companies and zero owned at all companies by him. Practically, probably nobody will call him on for this. This does not mean it is not breach of the law – Martin Dimitrov Jan 23 '21 at 18:17
  • @Stilez Yes, he is and nobody says he cannot do it, but he has to actually do it, not just take it. Let's give you an example. Bob is CEO of Company Inc. He takes a laptop from the office, without notifying anyone, without any paperwork. Without transferring the ownership to him as a private person. The board of Company Inc later removes Bob as CEO and appoint Andrew as the new CEO. Now Andrew looks at the inventory of the company and finds there is an unaccounted laptop. He asks Bob to return it, and Bob declines, stating he, as a CEO has given that laptop to himself as a gift 1/2 – Martin Dimitrov Jan 23 '21 at 18:22
  • @Stilez But since any paperwork is missing and there is no record of him doing this in any official capacity, that is not true and is theft(taking possession without intent to return). But case B - Bob fills the paperwork and transfers ownership of the laptop from Company Inc to himself. Later same scenario happens, but this is no longer theft, as it is a legit decision made by the actual CEO at the time, while morally questionable is entirely lawful and within the scope of CEO's power and nobody can sue him for anything 2/2 – Martin Dimitrov Jan 23 '21 at 18:25
  • @eps Also I would think people get sued for this in USA, because it is practically dodge of taxes. But I have no information whatsoever if anyone ever got sued about this. Also the question here is not whether somebody got sued in the past, but whether this lawful or not. It is by definition theft. – Martin Dimitrov Jan 23 '21 at 18:27
  • Martin - they usually only prosecute if there is a likelihood of conviction. Take a small company, and Bob is the CEO and 100% stockholder/shareholder with 30 staff and usual crap small biz records. That's more typical blurred lines. While checking assets, auditors ask where a laptop is (£/$1600 3 years ago). Bob says, "its 3 years old, we replaced it, I gave it to myself as I could use it personally at home, otherwise it was just going in the trash, it would cost more in staff time to sell it than its market value". If police knew they still probably wouldn't prosecute. Too low chance. – Stilez Jan 23 '21 at 21:27
  • @Stilez That is true. However the question was not whether the CEO will be prosecuted for theft, but whether it was theft, as it is described in the law. The answer to that question is undoubtedly yes. I tried to give some context and some example and explanation, so John can understand better. – Martin Dimitrov Jan 24 '21 at 11:53
  • No. Its not "undoubtedly yes". At least in UK law you'd have to prove beyond reasonable doubt, an intent to take and keep something without consent (broadly: see Theft Act 1968). Which means proving lack of self approval beyond reasonable doubt. Unless there's other corroborative evidence, like sneaky behaviour, dishonest explanations, or faked records, that is going to be somewhere between really difficult to impossible to demonstrate to that legal standard. The presumption will be that consent was given if he says so - and there is nothing in law that says verbal consent is not consent. – Stilez Jan 24 '21 at 12:09
  • (It may be different in the US, but I don't think that different..... similar legal systems and standards. Especially with a good.lawyer.) – Stilez Jan 24 '21 at 12:12
  • @Stilez Well, no. In the question it is specifically said "take and never return". It is not only the consent here. There must be a paperwork, transferring ownership from company to the private person, that is followed by taxes. If that is missing, the laptop is still property of the company. And while he might have implied consent to take it now, that does not mean he can never return it. He won't be CEO forever. The company might go bankrupt - he has to return it. The company might change ownership - he has to return it or have the new owners sign him a transfer of ownership. And so on – Martin Dimitrov Jan 24 '21 at 14:24
  • Yes. But a crime doesn't exist if the taking was consented. Consent can be verbal. The CEO is empowered to consent. It might be suspicious and surely bad practice. But if the CEO of a small business maintains he approved its giving to himself as an employee, then its down to other corroborative evidence if its believed to be a crime. "Beyond reasonable doubt" still holds for a crime to be deemed. Its hard to say it was taken without company knowledge, especially if there is no other board or duty to disclose. It may not be one. – Stilez Jan 24 '21 at 15:17
  • In the UK, the owner of a company can most definitely not take property of the company for private use. The company has to pay corporation tax for their profits. The company owner has to pay income tax on their income, and income tax is usually higher. If correctly done, the company would save 20% corporation tax, the company owner would pay 40% income tax. If the owner just takes an item, that's tax evasion. – gnasher729 Jun 14 '21 at 10:14
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If the CEO of a company enters the company's offices as a private person, finds a laptop, and takes it home to use it as his personal computer, that's theft. Even if he or she owns the company, it is at least tax evasion. It would also be stupid enough to get them fired, because it is very easy for them to get the use of a laptop legally.

As the CEO, he or she can decide that it is for some or other reason in the best interest of the company if the CEO is given a laptop that can also be used for private purposes. And when that decision is made, the CEO sends an email to IT, and the laptop will be promptly delivered. It would be highly unusual if anyone questioned the decision, and tried to turn it against the CEO somehow.

gnasher729
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  • The first setup misses the cases where he has all right to take the laptop home without being either theft or ta evasion. Examle: taking a very new machine with experimental OS home for a test of if the OS works with some other location, or just to finish working on a file he was working on. There are totally good reasons why someone might need to have a company issued laptop at home that are neither theft nor tax evasion.. – Trish Jan 25 '21 at 17:12
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No, NEVER!

Many good answers, but it cannot be considered theft. But you would never do that being the CEO, or even 100% owner, i'm one and i'll thell you why.

You should never mix personal property with company property. That's of course entirely up to your decision. But if you end up mixing it, then let's say your company ends up with a large debt, then your debtor can prove you mixed company property with your personal property, he will be able to require any of your personal property to cover your company debt. And since every enterprise has a lifespan, thats never a wise thing to do.

So, conclusion, it would be considered a bad habit and a unwise decision.

André Porto
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    Please note that this site is about the law. We are usually not discussing whether a certain act is a good idea or bad idea, or whether it is morally justifiable or not. We are only discussing whether it's legal or not. – vsz Jan 23 '21 at 19:36
  • When i said it is morally wrong was to imply it is not illegal, but may cause legal consequences in the future. – André Porto Jan 25 '21 at 12:32