A corporate structure whereby the shareholders of the company have a limited liability to the company's actions.

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Basically, an LLC is a hybrid between a partnership and a corporation.

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CEOs, CFOs, presidents and vice presidents: learn how to tell the difference. The Basics Of Corporate Structure

Company in which shareholders limit their liability exposure to their percentage of ownership or equity interest in the company. Shareholders' personal assets are protected in the event of business-related lawsuits. The tax situation for this type of company is much like that of the partnership in that it acts as a pass-through tax entity. A tax return for a partnership is filed with the IRS for information purposes only. All income and expenses are attributed to the stockholders of the LLC. According to the LLC agreement, the stockholders can allocate income and its resultant tax liability the same way as partners in a partnership.

The LLC has advantages over the subchapter "S" corporation to include the following: (1) LLC has no restriction on number of persons who may be stockholders; "S" corporations are limited to 35 stockholders; (2) LLC may have multiple classes of stock; an "S" corporation can have only one issue of stock; and (3) LLC may own subsidiaries; an "S" corporation cannot own subsidiaries.

Organization form recognized in many states that may be treated as a partnership for federal tax purposes and has Limited Liability protection for the owners at the state level. The entity may be subject to the state Franchise tax as a Corporation. Many states also recognize Limited Partnerships, in which the individual partners are protected from the liabilities of the other partners. These entities are considered Partnerships for both federal and state tax purposes.
Example: A limited liability company may be an excellent way to own real estate because it may provide many of the legal advantages of a Corporation and the tax advantages of a Partnership. States may impose restrictions, for example by limiting the number of owners.

The Limited Liability Company (LLC), a hybrid of the partnership and the corporation, has become a popular legal alternative for business owners. Now available in almost all states, the LLC combines the benefits of limited liability and pass through taxation, much like an S corporation. But the LLC's legal structure is much looser, allowing many companies that find S corporation status too restrictive to take advantage of its benefits. Small business owners are taking advantage of the LLC because it is easier to set up and maintain than a corporation.

Because the LLC is a fairly new option in the United States (it first became available in Wyoming in 1977, but most other states did not follow suit until the 1990s), the laws governing this business form are largely uninterpreted by court cases. In addition, each state has its own statutes concerning LLCs. Therefore, learning and keeping up with the laws that govern LLCs, which are still being fine-tuned, can be a tricky business. When considering the LLC option, consulting knowledgeable and up-to-date legal and tax advisors is a must.

Advantages of Forming an Llc

LIMITED LIABILITY. Like corporations, the LLC provides its members (owners) with protection from being personally responsible for the debt liabilities of the company. Members are only liable to the extent of their investments in the company. If a customer slips and is injured on company property, a law suit may still bankrupt the business, but it cannot touch the personal assets of the LLC's members. This limited liability, then, is a great advantage over partnerships. In general partnerships, all members are liable for the company's debts, and in a limited partnership, at least one member must still be liable.

AVOIDING DOUBLE TAXATION. Like S corporations, LLC's enjoy exemption from the double taxation required of C corporations. In other words, the LLC's profits pass through to the company's members, who report their share of the profits on their personal federal tax returns. The company itself does not pay a federal tax before the money is distributed to the members, as in the case of C corporations. But state and local taxes may still be levied against the LLC.

FLEXIBILITY OF INCOME DISTRIBUTION. One of the biggest benefits that small businesses enjoy when choosing LLC status, according to Fred Steingold, author of The Legal Guide for Starting and Running a Small Business, is that it is "easier to allocate profits and losses for tax purposes." Whereas the amount of profits the S corporation's shareholders report on their federal tax returns must be proportional to their share of stock, an LLC's members can determine amongst themselves how to divide their income as long as they follow the Internal Revenue Service's rules on partnership income distribution.

SIMPLICITY. Another great advantage of LLCs over corporations is the ease of setting up and running one. Whereas incorporation can be an involved and costly process, all that is required to start an LLC is the filing of an Articles of Organization and the drafting of an Operating Agreement defining the company's policies and procedures (a filing fee, though, will still be required of LLCs). And whereas a corporation requires a board of directors, officers, and regular shareholders' and directors' meetings, an LLC is not required to observe such formalities in its operation. An LLC can be run from day to day essentially as if it were a partnership.

NO OWNERSHIP RESTRICTIONS. The biggest drawback of forming an S corporation—the restrictions on the type and number of shareholders the corporation may have—is avoided by forming an LLC. The members of an LLC may be foreign nationals or other companies, both of which are prohibited from owning stock in an S corporation. In addition, there is no limit on the number of members an LLC may have, as there is with an S corporation.

MEMBER INVOLVEMENT IN THE COMPANY. One problem with limited partnerships is that those partners who wish to protect themselves with limited liability (which may be all but one of the members) are prohibited from direct involvement in running the company. These partners may have only a financial investment in the firm. All members of an LLC may be directly involved in the company's management without jeopardizing their limited liability.

ATTRACTIVE TO FOREIGN INVESTORS. Because LLCs have been in existence in Europe and Latin America for over a century, investors from those parts of the world are particularly knowledgeable about this business form. According to The Essential Limited Liability Handbook, "LLCs often prove to be the most familiar and least imposing business structure for foreign entrepreneurs who wish to enter the American market."

Drawbacks of Forming an Llc

NEWNESS. LLCs are still a very new option in most states (only Wyoming and Florida had LLC statutes on the books prior to the 1990s). This means that the statutes governing the establishment of LLCs are still evolving. And there is virtually no case history in the courts to indicate how these laws will be interpreted. The Internal Revenue Service is also still working out its position concerning LLCs, so it will be imperative for small business owners to solicit legal and tax advice on the current laws before making a decision about whether or not to form an LLC. And because the laws may change while the LLC is in existence, it will be important to keep on top of the developments in LLC statutes to determine whether it remains in the company's best interests to operate as an LLC.

INTERSTATE BUSINESS MORE COMPLICATED. Laws governing LLCs can vary widely from state to state, complicating the conduct of business across state lines. There are, as of yet, no uniform laws concerning LLCs, so an even greater knowledge of the state laws will be required of the company that does business in more than one state.

NO PERPETUAL EXISTENCE. Most states require that an LLC's Operating Agreement set a limit to the company's existence (usually 30 years). And in the absence of a clause in the Operating Agreement providing for the continuance of the LLC in the event of the death or withdrawal of a member, the LLC will cease to exist when such events occur. The transfer of ownership is also more restricted for an LLC (like a partnership) than for a corporation.

Creating an Llc

It is important that the organizer(s) of a prospective LLC follow the "enabling statutes" or formation laws of the state in which the company will be formed in order to be designated as an LLC. Without this designation, the company will lack the protection of limited liability and will be treated as a general partnership. Therefore, the first step in creating an LLC is to find out your state's specific enabling statutes.

The organizer does not have to be one of the company's members. The organizer's function is to file the articles of organization, a task which can be accomplished by a lawyer, a hired agent from a service company specializing in such business, or a manager of the prospective company.

NAMING AN LLC. Before forming an LLC, the company name must be reserved with the secretary of state or its equivalent. Most states require that the words "Limited Liability Company" or the abbreviation "LLC" be included in the name of the company. In some states, "Limited Company" or "LC" is the preferred designation. In all states, though, the name of the LLC must not resemble the name of any other corporation, LLC, partnership, or sole proprietorship that is registered with the state.

THE ARTICLES OF ORGANIZATION. This form, called the articles of organization or certificate of formation, must be obtained from the secretary of state's office or its equivalent, filled out by the organizer(s), and filed with the same office. A filing fee, which varies from state to state, will also be charged. This simple document requires, at minimum, the company name and address, a description of the business to be conducted, the name and address of the registered agent (the contact to whom notices of lawsuit or other official matters can be served), the names of the company's members and managers (usually the members themselves), and the dissolution date. Other information may be required, depending on which state the articles of organization are filed in. It is important that the articles describe the business in a way that will allow the Internal Revenue Service to designate the company a partnership for tax purposes, and not a corporation. In order for the I.R.S. to do so, the articles must show that the company possesses no more than two of the following four characteristics (which describe a corporation):

• Perpetual existence
• Centralized management
• Free transferability of ownership interest
• Limited liability

One of the easiest ways to show that the LLC is not a corporation is to limit its existence. In fact, most states require that a dissolution date be determined in the articles of organization. On this date the LLC's assets will be liquidated and its business will cease (occurrences such as the mutual written agreement of the members or the death or retirement of a member may also terminate the LLC's existence before the dissolution date). If no date is specified, a default period of usually 30 years will be enacted. However, the members may decide to continue the LLC's existence at a later date.

FEES. Filing fees vary from state to state, from $50 to $500. In addition, some states require the LLC to publish an announcement of its creation to the public in a generally circulated newspaper. This latter requirement can be very expensive, ranging from $500 to $2,000.

THE OPERATING AGREEMENT. At the first meeting of the members, called the organizational meeting, an operating agreement should be drafted. Although each state has laws governing how LLC's should be operated, the members should create their own operating agreement to document that all members agree on how the company should be run. It should be carefully constructed with an eye to preventing future disagreements and deadlocks. Most basically, the agreement should address the division of profits, members' voting rights, and company management. A good operating agreement will address the following issues:

• Who the members are and how they will be elected in the future.
• Grounds on which members may be terminated, and procedures to execute such terminations.
• Stipulations regarding allocation of business shares after the death of a member.
• If a member becomes disabled, how will the company provide for him/her (with disability insurance or out of its own funds)?
• How managers will be selected and what their duties, salaries, and grounds for dismissal will be.
• How major decisions will be made. (Which decisions will require unanimous approval of the members and which a simple majority vote? Which decisions can be delegated to the manager in charge of daily affairs?)
• How often meetings will be held and how much notice members must receive.
• Who will keep records and how they will be kept.
• How members will invest in the LLC: will only cash contributions be allowed, or can members contribute services as well? If so, which services will be accepted and how will they be valued?
• How profits and losses will be allocated to members.
• How compensation (salary) for actively participating members will be determined.
• How new capital should be acquired should the company need it.
• What procedures must be followed to transfer interests in the company.
• What banking procedures should be followed.
• Penalties, if any, if members or managers fail to act in accordance with the operating agreement.

Further Reading:

Borofsky, Jeffrey Mark. "Converting a Corporation to an LLC." CPA Journal. March 1998.

Byrd, Stephen, and Brett Richey. "The Choice of Entity for the Small Business Owner." Mid-Atlantic Journal of Business. December 1, 1998.

Damman, Gregory C. How to Form and Operate a Limited Liability Company: A Do-it-Yourself Guide. Self-Counsel Press, 1995.

The Essential Limited Liability Handbook. Oasis Press, 1995.

Friedman, Scott E. How to Profit by Forming Your Own Limited Liability Company. Upstart, 1995.

Handmaker, Stuart A. Choosing a Legal Structure for Your Business. Prentice Hall, 1997.

Mancuso, Anthony. Form Your Own Limited Liability Company. Nolo Press, 1996.

Shenkman, Martin M., Samuel Weiner, and Ivan Taback. Starting a Limited Liability Company. Wiley, 1996.

This entry contains information applicable to United States law only.

A noncorporate business whose owners actively participate in the organization's management and are protected against personal liability for the organization's debts and obligations.

The limited liability company (LLC) is a hybrid legal entity that has characteristics of a corporation and a partnership. An LLC provides its owners with corporate-like protection against personal liability. It is, however, usually treated as a noncorporate business organization for tax purposes.

History

The LLC is a relatively new business form in the United States, although it has existed in other countries for some time. In 1977 Wyoming became the first state to enact LLC legislation: it wanted to attract capital and created the statute specifically for a Texas oil company (W.S. 1977 § 17-15-101 et seq., Laws 1977, ch. 158 § 1). Florida followed with its own LLC statute in 1982 (West's F.S.A. § 608.401, Laws 1982, c. 82-177 § 2). At this point states had little incentive to form an LLC because it remained unclear whether the Internal Revenue Service (IRS) would treat an LLC as a partnership or as a corporation for tax purposes. In 1988 the IRS issued a ruling that an LLC in Wyoming would be treated as a partnership for tax purposes. This allowed the taxable profits and losses of an LLC to flow through to the LLC's individual owners; unlike a typical corporation, an LLC would not be taxed as a separate business organization. After the 1988 IRS ruling, nearly every state in the United States enacted an LLC statute, and the LLC is now a widely recognized business form. Many legal issues concerning the LLC are still developing.

Formation

State law governs the creation of an LLC. Persons form an LLC by filing required documents with the appropriate state authority, usually the secretary of state. Most states require the filing of articles of organization. These are considered public documents and are similar to articles of incorporation, which establish a corporation as a legal entity. The LLC usually comes into existence on the same day the articles of organization are filed and a filing fee is paid to the secretary of state.

The minimum information required for the articles of organization varies from state to state. Generally, it includes the name of the LLC, the name of the person organizing the LLC, the duration of the LLC, and the name of the LLC's registered agent. Some states require additional information, such as the LLC's business purpose and details about the LLC's membership and management structure. In all states an LLC's name must include words or phrases that identify it as a limited liability company. These may be the specific words Limited Liability Company or one of various abbreviations of those words, such as LLC or Ltd. Liability Co.

Structure

The owners of an LLC are called members and are similar in some respects to shareholders of a corporation. A member can be a natural person, a corporation, a partnership, or another legal association or entity. Unlike corporations, which may be formed by only one shareholder, LLCs in most states must be formed and managed by two or more members. LLCs are therefore unavailable to sole proprietors. In addition, unlike some closely held, or S, corporations, which are allowed a limited number of shareholders, LLCs may have any number of members beyond one.

Generally, state law outlines the required governing structure of an LLC. In most states members may manage an LLC directly or delegate management responsibility to one or more managers. Managers of an LLC are usually elected or appointed by the members. Some LLCs may have one, two, or more managers. Like a general partner in a limited partnership or an officer in a corporation, an LLC's manager is responsible for the day-to-day management of the business.

A manager owes a duty of loyalty and care to the LLC. Unless the members consent, a manager may not use LLC property for personal benefit and may not compete with the LLC's business. In addition, a manager may not engage in self-dealing or usurp an LLC's business opportunities, unless the members consent to a transaction involving such activity after being fully informed of the manager's interest.

Operating Agreement

Nearly every LLC maintains a separate written or oral operating agreement, which is generally defined as the agreement between the members that governs the affairs of the LLC. Some states call an operating agreement regulations or a member control agreement. Although some states do not require an operating agreement, nearly all LLCs create and maintain a written document that details their management structure.

The operating agreement typically provides the procedures for admitting new members, outlines the status of the LLC upon a member's withdrawal, and outlines the procedures for dissolution of the LLC. Unless state law restricts the contents of an operating agreement, members of an LLC are free to structure the agreement as they see fit. An LLC can usually amend or repeal provisions of its operating agreement by a vote of its members.

Membership Interests

A member of an LLC possesses a membership interest, which usually includes only an economic interest. A membership interest is considered personal property and may be freely transferred to nonmembers or to other members. The membership interest usually does not include any right to participate in the management of the LLC. Accordingly, if a member assigns or sells a membership interest to another person, that other person typically receives only the right to the assigning member's share of profits in the LLC. Persons who receive a membership interest are not able to participate as voting members or managers unless they are admitted as new members.

State law and an LLC's operating agreement or articles of organization provide the circumstances under which a person may be admitted as a new member. These circumstances vary. Usually the admission of a new member requires the consent of existing members, and in most cases the consent must be unanimous. In some cases the articles of organization do not allow for admission of new members. In others the recipient of a membership interest may be automatically admitted as a new member.

Member Contributions

Members of an LLC contribute capital to the LLC in exchange for a membership interest. There is no minimum amount of capital contribution, and members usually can contribute cash, property, or services. By default, the total amount of a member's capital contribution to an LLC determines the member's voting and financial rights in the LLC. In other words, unless an LLC's operating agreement provides for a different arrangement, the profits and losses of the LLC are shared proportionally in relation to the members' contributions to the LLC. For example, if a member's capital contributions constitute 40 percent of an LLC's capital, that member typically has a 40 percent stake in the LLC and has more voting power than a member with a 20 percent interest.

A member may promise a future contribution to an LLC in exchange for a membership interest. If the member later fails to make the contribution, the LLC generally may enforce the promise as a contract or sell the member's existing interest to remedy the failure.

Distributions of profits or assets to members are usually governed by an LLC's operating agreement. Most state LLC laws do not require distributions to members other than when a member withdraws or terminates membership. Members vote to determine all aspects of distributions to members, including amount and timing. Because a member's share of any distribution or loss depends on the member's share of all capital contributions to an LLC, the LLC maintains records of each member's capital contribution.

Liability

State LLC statutes specifically provide that members of an LLC are not personally liable for the LLC's debts and obligations. This limited liability is similar to the liability protection for corporate shareholders, partners in a limited partnership, and partners in a limited liability partnership. Under certain circumstances, however, a member may become personally liable for an LLC's debts.

An individual member is generally personally liable for her own torts and for any contractual obligations entered into on behalf of the member and not on behalf of an LLC. In addition, a member is personally liable to a third person if the member personally guarantees a debt or obligation to the third person. A person who incurs debts and obligations on behalf of the LLC prior to the LLC's formation is jointly and severally liable with the LLC for those debts and obligations.

Members may also become personally liable for an LLC's debts or obligations under the "piercing-the-corporate-veil" theory. This doctrine imposes personal liability upon corporate shareholders and applies primarily if a corporation is undercapitalized, fails to follow corporate formalities, or engages in fraud. Although the law of LLCs is still developing, piercing the corporate veil is likely applicable to an LLC that fails to follow the legal formalities required to manage the LLC. LLC statutes in Colorado, Illinois, and Minnesota specifically apply the corporate veil-piercing theory to LLCs.

A member is generally considered an agent of an LLC and thus may bind the LLC for the debts and obligations of the business. When a member has apparent or actual authority and acts on behalf of an LLC while carrying on the usual business of the LLC, the member binds the LLC. If a third person knows that the member is not authorized to act on behalf of the LLC, the LLC is generally not liable for the member's unauthorized acts. Some states also limit a member's authority to act as an agent of an LLC.

Records and Books

Many LLC statutes require an LLC to maintain sufficient books and records of its business and management affairs. This requirement varies from state to state. The books and records generally detail the members' contributions to the LLC, the LLC's financial and tax data, and other financial and management information. Like a partnership's books, an LLC's books generally must be kept at the LLC's principal place of business, and each member must have access to and must be allowed to inspect and copy the books upon reasonable demand.

Taxation

The IRS generally treats an LLC as a partnership for federal income tax purposes. The LLC's members are taxed only on their share of LLC profits. Any gains, losses, credits, and deductions flow through the LLC to the members, who report them as income and losses on their personal tax return. The LLC is not taxed as a separate entity unless it fails to qualify as a partnership for tax purposes.

The IRS will examine a state's LLC statute and an LLC's operation to determine whether the LLC qualifies as a partnership for tax purposes. Essentially, if the IRS determines that the LLC resembles a corporation more than a partnership, the LLC may not qualify as a partnership for tax purposes. Under IRS regulations, an LLC must lack two of four recognized corporate characteristics before it will be treated as a partnership for tax purposes. These characteristics are limited liability, centralized management, free transferability of interests, and continuity of life. Because every LLC protects its members' liability, an LLC almost always possesses the characteristic of limited liability. Therefore, the IRS's analysis usually focuses on the last three characteristics.

Centralized Management

A business organization has centralized management when one or more persons have exclusive authority to manage its day-to-day conduct. Most LLCs lack the corporate characteristic of centralized management because most state LLC statutes provide that members manage the LLC directly, and LLCs that do not have separate managers lack the corporate characteristic of centralized management. However, some states require LLCs to have one or more managers to manage the LLC. If an LLC's operating agreement or articles of organization require each and every member to be a manager, the LLC likely lacks the corporate characteristic of centralized management. If, on the other hand, the members designate nonmembers to manage the LLC or designate member-managers who do not own a substantial portion of the LLC's membership interests, the LLC may possess the corporate characteristic of centralized management.

Free Transferability of Interests

A business form possesses free transferability of interests when one of its owners essentially has the power to substitute another person as a new owner of the business. Most corporate shareholders, for example, may sell their shares freely and thereby transfer their ownership interest to another person, without the consent of other shareholders. A member in an LLC, however, generally may not substitute another person as a new member unless the existing members agree to the substitution. A member typically has the power only to assign his economic rights in an LLC. Thus, members of an LLC lack the ability to freely transfer substantially all of their interest in the LLC.

Continuity of Life

Continuity of life essentially means perpetual continuation without regard to the withdrawal, expulsion, or death of any member. Most state LLC statutes provide for the dissolution of an LLC upon the death, disability, bankruptcy, or withdrawal of a member. Accordingly, most LLCs lack the corporate characteristic of continuity of life, unless their operating agreement substantially changes the effect of a member's withdrawal upon the continued existence of the LLC. Many state LLC statutes also limit the duration of an LLC to thirty years, but this limitation does not affect the IRS's determination of whether an LLC lacks continuity of life.

Member Withdrawal

Members may withdraw from an LLC unless the operating agreement or articles of organization limit their ability to do so. A member must usually provide to the LLC written notice that she intends to withdraw. If a withdrawal violates the operating agreement, the withdrawing member may be liable to the other members or the LLC for damages associated with it. State law frequently sets forth the circumstances under which a member may withdraw from an LLC. In many states a member may withdraw only if she or he provides six months' written notice of the intent to withdraw. In a few states, an LLC cannot prevent a member's withdrawal.

A member who withdraws is usually entitled to a return of his capital contribution to an LLC, unless the withdrawal is unauthorized. Some LLCs instead pay a withdrawing member the fair market value of his or her membership interest. The operating agreement typically provides for the method and manner of payment of a withdrawing member's interest. State law also governs those issues.

Dissolution

Dissolution means the legal end of an LLC's existence. In most states an LLC legally dissolves upon the death, disability, withdrawal, bankruptcy, or expulsion of a member. These occurrences are generally called disassociations. Other circumstances that bring about dissolution include bankruptcy of the LLC, a court order, or the fulfillment of the LLC's stated period of duration.

Most states provide for the continuation of an LLC after the disassociation or withdrawal of a member. Continuation after a member's disassociation usually requires the remaining members' unanimous consent. Some states require that the articles of organization or operating agreement allow for the continuation of the business after a member's disassociation. Some states allow an LLC's articles of organization or operating agreement to require the continuation of the business after a member's dissociation even if the remaining members do not provide unanimous consent.

If an LLC dissolves, state law and the LLC's operating agreement usually outline the process for winding up the LLC's business. In this process the LLC pays off its remaining creditors and distributes any remaining assets to its members. The LLC's creditors receive priority. Although members may be creditors, they are not creditors in determining the members' distributive shares of any remaining assets. After the LLC pays off its creditors, and only then, it distributes the remaining assets to its members, either in proportion to the members' shares of profits or under some other arrangement outlined in the operating agreement. After an LLC winds up its business, most states require it to file articles of dissolution.

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