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Affordable LLC formation for non-USA customers: many people outside of the United States of America routinely form LLCs in Delaware in order to take advantage of the many tax benefits available. While this might seem slightly more complicated to do than if you were a US customer, at Coddan Ltd we can register an LLC in Delaware for you as well as providing a range of other post-incorporation services to help you on your way. We offer four unique limited liability company start-up packages in the State of Delaware, each at a different price point and including different features, so you can choose the LLC formation package which meets your requirements on top of this page.
USA LLC registration for overseas customers: establishing a Delaware LLC even if you are based outside of the American is very simple, and at Coddan Ltd we can have yourlimited liability company set up within 24 hours. However, simply establishing your LLC is not all that we offer; our other services are often considered to be indispensable in ensuring that your LLC is established and run safely and legally, which gives you the peace of mind you need when registering an LLC in Delaware. Obviously, before you start trading with your Delaware LLC, your company will need a business bank account. We can open a bank account in EU for you, as well as assist you with filing your annual returns and preparing and submitting your LLC annual accounts with both Secretary of State and Inland Revenue. If you hire us to do this work for you, you can rest assured that it will be done quickly and correctly - and the security that this provides can't be overstated.
LLC formation with nominee members: if you want to keep your involvement with the LLC entirely secret then for an annual fee Coddan Ltd can provide a nominee members and nominee operating manager who will own the membership on your behalf. There is variety of commercial reasons why people might want to remain anonymous. They might want to avoid it being known to competitors that they are branching out into a new area, for example. We can provide and appoint nominee partners service upon formation of your LLC in Delaware, New York, Florida, and California. LLC incorporation with nominee members: the nominee member will own the LLC membership, but all benefits will accrue to the people who appointed them and the nominees will not become involved in the running of the business beyond signing documents as required. There can be a maximum of one beneficiary per nominee partner. A declaration of trust is signed giving effect to this arrangement. An undated signed membership transfer form is provided so that the beneficiary can take their membership at any moment. If you are looking for LLC formation in Delaware with nominee partners, or setting up a limited liability company with nominee members, we can help!
LLC incorporation for non-USA clients: there are a great many more things we can do for you if you let us help you establish an LLC in Delaware. We can also provide you with a registered office address, business service address, and provide nominee members. We can also verify your corporate documents with an apostille authentication stamp. The number of services we can offer you as a non-USA customer is huge, and their usefulness cannot be underestimated. To discuss your LLC company formation options in greater detail or just to find out exactly how we might go about forming your LLC, don't hesitate to get in touch with Coddan Ltd - we're always happy to help to register an LLC for non-UK customers!
LLC registration for UK and overseas customers: there are some key tax advantages involved in setting up an LLC in Delaware from a foreign country. However, forming an LLC whilst living abroad can be difficult and stressful. Thankfully, LLC registration for non-USA customers can be carried out by LLC formation experts. They will get your new LLC started whilst complying with all USA regulations, and they will usually provide a range of additional services in order to get your new commercial venture off to the best possible start. As well as lodging all the necessary information and documentation to Secretary of State, LLC registration for overseas customers will often also include the setting up of a bank account - meaning your new LLC can start trading within hours. If you need an assistance with LLC formation, you can also speak to our business advisors between 9.30am-6.00pm Monday to Friday by telephoning + (0) 207.935.5171 or + (0) 330.808.0089 (national rates).
Benefits to register a business as a limited liability company: the primary advantage of a limited liability company is limiting the liability of its members. Unless they personally guarantee them, the members are not liable for the debts and obligations of the limited liability company. In a partnership, limited partnership, or sole proprietorship, creditors may seize personal assets of the participants to pay debts of the business.
The American limited liability company is a powerful entity to protect assets from the threat of lawsuits and claims. It would also make sense to separate your risky assets from your safe assets. For example, hold investments in one LLC, and heavy equipment and property in another LLC.
Are there benefits to forming a LLC in USA? The limited liability company (LLC) is a relatively new business structure that is increasingly popular with small companies. An LLC offers the liability protection of a corporation and the flexibility and tax advantages of a partnership. In an LLC, income passes through to the owners, instead of being taxed separately.
Rules for running an LLC are less rigid than those for a corporation. For example, LLCs don't have to hold annual meetings. Same pass-through features of an S corporation which avoids double taxation of profits. Flexibility of a partnership without the restrictions of an S corporation. In comparison to a limited partnership, the limited liability company (LLC) offers limited liability protection for all members, whereas the general partner in a limited partnership has unlimited liability.
Also, if any limited partner in a limited partnership participates in management, the limited partner is exposed to personal liability, whereas a limited liability company (LLC) member who participates in management is not exposed. Contribution of appreciated property to an S corporation is a tax-free event if the contributing shareholders control 80% or more of the stock after the contribution.
A contribution of appreciated property to a limited liability company (LLC) as a partnership is tax free regardless as to how much control the contributing partner has. Liquidation of an S corporation interest is a taxable event and is treated as if the corporation sold the liquidated assets at their fair market value to the shareholder. Liquidation of a limited liability company (LLC) as a partnership is generally a tax-free event.
LLCs allow a business to have the limited personal liability of a corporation as provided by state law, while being treated as a partnership for purposes of Federal tax laws. The downside to an LLC is that you don't get the free transferability of ownership, perpetual existence, and the ability to be totally owned by a single individual that you'd get with a corporation. That is the trade off you make to get the partnership tax status and greater management flexibility. If the company's business plan includes raising capital by someday admitting new owners or going public, then a corporation is probably the more desirable form for the business.
Limited liability companies generally restrict the transfer of ownership interests in the business to make sure the business is classified as a partnership under federal tax law. A registered LLC usually has a limited existence in that it will end after a specified number of years or upon the occurrence of some specified event. This requirement is intended to help the business qualify as a partnership for purposes of tax law.
If you want to register an LLC in USA, or need an advise aboout an LLC formation in the United States of America, please contact us via e-mail, or by phone. While this is a complicated process, once you have a basic understanding of it, you can file for registration of an LLC company in under few hours. Are you looking for information & guidance regarding limited liability company registration in Delaware and need a small business start-up advice in United States? We are serving the UK and non-UK customers who are looking to use an LLC benefits to start a business, please contact for the further details.
Should you seriously consider forming an LLC? Anyone who sets up an LLC in USA needs to be able to quickly locate key organizational documents. These are your LLC articles of organization (sometimes called a "certificate of formation" or a "certificate of organization") and operating agreement. Because these are really the constitution of your LLC, you'll refer to them again and again. If you have not already done so, set up an LLC records binder that contains all key LLC documents.
You can do this on your own with a three-ring binder. Your LLC records binder should contain: an articles of organization, operating agreement, membership certificates and stubs (if your LLC decides to issue certificates to members), membership register that lists the names and addresses of your members, membership transfer ledger, showing the dates of any transfers of membership interests by a member, and minutes of LLC meetings and written consent forms.
It's true that an LLC can be set up with a management structure that has the same centralized features as a board-managed corporation - for example, the LLC can select a management team consisting of owners who are active in the business and possibly an outside investor. But precisely because LLCs are more flexible and informal business entities, they can be less disciplined and less responsive to the interests of outside investors.
Specifically, they don't provide as many management protections and controls as do corporations, such as shareholder inspection rights and annual disclosure requirements, which makes it more difficult for investors to hold management accountable. In addition, it's more difficult to set up different classes of ownership in an LLC to cater to the special concerns of investors. In contrast, in a corporation, the founders can adopt an off-the-shelf capitalization structure of non-preferred and preferred shares - which are usually immediately attractive to venture capital investors.
And forget about taking an LLC public with an IPO (initial public offering of stock) - if this is your short-term dream, you'll definitely want to incorporate to take advantage of the long-established statutory procedures that address the interests of attracting and maintaining a large group of investors (shareholders).
The first key organizing document any LLC must have is its articles of organization (in some states, this document is called a certificate of organization or certificate of formation). An LLC comes into existence when its articles of organization are filed with the state LLC filing office. The articles normally contain fundamental structural information about the company, such as: the name of the LLC, whether the LLC is managed by all of its members or by specially selected managers (most smaller LLCs are member-managed), the names and addresses of its members and/or managers and its registered expert, and the expert's office address (this is the registered office of the LLC to which legal papers can be sent by the state and by persons serving legal process on the LLC).
For the majority of small LLCs, no additional information is required in this document. However, larger LLCs sometimes add optional articles containing special provisions if they wish to set up a more complex structure for their LLC.
The LLC operating agreement is an LLC's second-most important document. The operating agreement does not need to be filed with the State of incorporation - it is an internal document, much like corporate bylaws or a partnership agreement. It lists the capital, profits, and voting interests of current members of the LLC.
The operating agreement may specify: the frequency of regular meetings of managers and members, and the call, notice, quorum, and voting rules for each type of meeting. Or it may be silent on these issues, leaving these details to the LLC managers and members to decide later. Typically, state requirements for approving special matters are also included in the operating agreement. This includes any state-mandated manager and member voting requirements for admitting new members or for approving the sale of a membership interest by a current member to a new member.
Membership certificates and stubs: it is not legally necessary to issue membership certificates to members. However, some LLC owners like this additional formality. Typically, there is no state-required format for such membership certificates. Most certificates show the name of the LLC, the name of the member, and the date of issuance of the certificate. Certificates are signed by one or more LLC officers (the LLC president and secretary, typically).
A certificate normally does not show the exact capital, profits, or voting interests of an member; instead, it simply recites that the member is entitled to the rights and subject to the responsibilities of membership, as set out in the articles of organization and operating agreement of the LLC. After the certificate is issued to a member, a certificate stub is filled out by the LLC secretary, showing the date of issuance and certificate number. The certificate stubs are kept in the LLC records binder. The stubs usually contain a transfer section that is completed if and when a member transfers the membership back to the LLC or to another person.
Membership registers: the State law generally requires an LLC to keep an alphabetical list of the names and addresses of all current members. This list can be inspected by any member during regular business hours of the LLC. It should also be made available for inspection to all members at any membership meeting. This list is used by the LLC secretary to prepare and mail notice of meetings to members. If the LLC is managed by specially selected managers, the LLC should have a list of the managers' names and addresses.
Minutes of LLC Meetings: if your LLC has been in existence for some time, you may have previously prepared minutes of LLC manager or member meetings or written consent forms. This is especially likely if a lawyer helped you form your LLC. Contact your attorney to get copies of previously prepared minutes and written consents, and place them in your LLC records binder.
Most States allow LLCs to be formed with one or more members. The IRS has "check the box" regulations that default to taxation as a partnership. The tax form used is form 1065. Members may not get paid a "salary" or "wages." In lieu of salary, earned income may be paid as "consulting fees" or "guaranteed payments to members/partners."
These are taxed to the member (not to the LLC) for SECA purposes (similar to FICA and Medicare). Once "earned income" is generated as per the above, you may receive (if desired and if structured properly) a tax deduction for payments made for health insurance and retirement plan contributions for yourself and family members. An LLC is owned by its members. They are analogous to partners in a partnership or shareholders in a corporation, depending on the how the LLC is managed.
A member will more closely resemble a shareholder if the LLC utilizes the operating concept of a manager or managers because then the members will not participate in management. If the LLC does not utilize managers, then the members will closely resemble partners because they will have a direct say in the decision making of the company. A member's ownership of an LLC is represented by their "interests," just as partners have "interest" in a partnership and shareholders have stock in a corporation.
Whether you're starting a new business or looking to protect your assets, forming a business entity: corporation, limited liability company, S-corporation or limited partnership is serious business. One size does not fit all when it comes to deciding how you are going to structure your business. Not only is it important to pick the right business structure but it's even more important that you properly set-up your new company from the beginning. Failure to structure your business correctly from the start can leave you personally exposed to litigation and possible tax penalties.
Limited liability company has the advantage of being a hybrid between a partnership and a corporation. The advantage of a limited liability company is that most states require fewer formalities be observed in an LLC in comparison to a corporation. Real Estate Investments. LLC's flexibility allow unlimited number of members. LLCs may register their shares with the Securities and Exchange Commission as publicly traded securities i.e.(REITS) Real Estate Investment Trusts under the LLC umbrella at far less costs and with less administrative complications. The United States is the "offshore" for foreign entrepreneurs. Foreign investors consider the United States as their "offshore" tax-free tax haven jurisdiction due to favorite treatment of their investments and tax-free status afforded to them.
Example: there's no capital gains taxes on securities purchased in the United States and sold by foreign investors. The LLC is an ideal way to transfer wealth amongst family members. The older generation (parents) retain control of the assets or business by eliminating third party interests and restricting membership, while eliminating estate and gift tax consequences. The LLC is a much more practical device for this purpose with no mandatory distributions to the younger generation (children).
Once you have decided the type of business entity which is best for your business, articles of organization must be filed with the proper state agency together with certain fees. Coddan will provide all necessary services to ensure that the administrative processes are completed in the shortest period of time, with the highest degree of skill and efficiency, and at the lowest cost.
LLC Advantages: only one LLC member is required to form an LLC in the State of Delaware. Historically, some states require that a limited liability company be comprised of at least two LLC members. Today most states and the IRS recognize the single-member LLC as a legitimate business structure.
Separate legal entity, like a limited partnerships and corporations: the limited liability company shares a similar advantage - it is recognized as a separate legal entity from its "members".
If you're a business owner considering your business incorporation options in USA, Coddan is the valuable online resource for information to help you decided whether to form an LLC company in United Stats of America or another type of business entity. There are pros and cons to each, but no matter what type of corporation you opt for, the corporate designation confers an image of stability, longevity, and competence.
Entrepreneurs trust us to incorporate in Delaware and register an LLC on the same day, LLC incorporation in USA protects your personal assets from business liabilities. Referrals and repeat customers generate most of our business. We are more than just a filing service; we develop relationships with clients to help make them successful and keep them returning. The Coddan makes registering your Delaware LLC fast and easy. most states answer incorporation submissions within 2-3 business days, so your Delaware LLC can be up and running quickly.
A limited liability company, also referred to as an "LLC", is a new class of business operating entity with legal status in certain states (see below) - a hybrid between an S corporation and a partnership. It combines the tax advantage of a partnership (avoidance of corporate income tax) with the legal safeguard of a corporation - namely the fact that owner' personal assets are not normally at risk in business-related lawsuits. As of December 1997, all states, plus the District of Columbia, have passed laws governing the administration and operation of LLCs within their jurisdictions.
Simplicity and flexibility of operation: an LLC is formed by filing a form called articles of organization with the Secretary of State, which are similar to articles of incorporation for a corporation. Some states, including California, require an annual report to be filed to keep the records maintained by the state current. Other than that, there are generally no other reports or forms to be filed, except tax returns. An LLC may be "manager managed" or "member managed."
A limited liability company that is manager managed is similar to a limited partnership where the general partner has the authority to run the operations of the partnership and the other members have little or no input. In short, the "manager-managed" LLC is well suited to accomplish this estate-planning objective. A manager of a manager-managed LLC may, but need not, be a member (this is a corporate concept). The articles of organization or certificate of formation of an LLC may have to specify whether the limited liability company is member-managed or manager-managed to make this a matter of public record.
An LLC that is member managed is similar to a general partnership where all the members have equal say in the operation or the voting may be based on their ownership interest. An LLC also allows for great management flexibility. The management can be decentralized and informal, such as the management of a general partnership. Alternatively, the limited liability company may adopt a corporate style of management structure with a board of "managing directors." The Board may then appoint a president, CFO and secretary.
Registration of single-owner LLC or incorporation of a congle member LLC on America: the IRS treats one-member LLCs as sole proprietorships for tax purposes. This means that the LLC itself does not pay taxes and does not have to file a return with the IRS. As the sole owner of your LLC, you must report all profits (or losses) of the LLC on Schedule C and submit it with your 1040 tax return. Even if you leave profits in the company's bank account at the end of the year - for instance, to cover future expenses or expand the business - you must pay taxes on that money.
Create of establish the multi-owner LLC: the IRS treats co-owned LLCs as partnerships for tax purposes. Co-owned limited liability companies themselves do not pay taxes on business income; instead, the LLC owners each pay taxes on their lawful share of the profits on their personal income tax returns (with Schedule E). Each LLC member's share of profits and losses, called a distributive share, is set out in the LLC operating agreement.
Most operating agreements provide that a member's distributive share is in proportion to his percentage interest in the business. For instance, if Jimmy owns 60% of the LLC, and Luana owns the other 40%, Jimmy will be entitled to 60% of the LLC's profits and losses, and Luana will be entitled to 40%. If you'd like to split up profits and losses in a way that is not proportionate to the members' percentage interests in the business, it's called a "special allocation," and you must carefully follow IRS rules.
However members' distributive shares are divvied up, the IRS treats each LLC member as though s/he receives her/his entire distributive share each year. This means that each LLC member must pay taxes on their distributive share whether or not the LLC actually distributes the money to him/her. The practical significance of this IRS rule is that even if LLC members need to leave profits in the LLC - for instance, to buy inventory or expand the business - each LLC member is liable for income tax on her/his rightful share of that money.
Even though a co-owned LLC itself does not pay income taxes, it must file Form 1065 with the IRS. This form, the same one that a partnership files, is an informational return that the IRS reviews to make sure the LLC members are reporting their income correctly. The LLC must also provide each LLC member with a "Schedule K-1," which breaks down each member's share of the LLC's profits and losses. In turn, each LLC member reports this profit and loss information on his or her individual Form 1040, with Schedule E attached.
After your articles of formation are filed, your LLC should have an organizational meeting where an operating agreement is adopted, interest certificates are distributed and other preliminary matters are completed.
The LLC is treated as a partnership for federal tax reporting. Taxable income and losses pass through to its members (owners) in the same manner, as is the case with partnerships and similar to S corporations. The law allows the inclusion of liabilities of the LLC in order to increase basis for tax purposes (as in the case of a partnership). The liability of all members is limited to their investments in the LLC (unless they personally guarantee other debt incurred by the limited liability company).
Payment to a retiring member may be structured so as to allow part of the payment to be deducted as an expense to the LLC. The Delaware Limited Company Liability Act does not require that a limited liability company agreement be in English. If an LLC has no members in the U.S., and derives no income from sources within the U.S., then, according to current law, as of December 1997, no U.S. federal income taxes will be due by the members who are non-resident aliens of the U.S. An LLC can be formed by one member/manager. Delaware does not require the member/manager be listed in the document. The new IRS ruling allows the LLC to be perpetual.
The benefits for owner-employees, such as health care or life insurance, are only partially deductible from these members' individual federal income tax returns. If you want your LLC to have a fiscal year other than a calendar year, a special election is required.
The initial members of a new LLC ordinarily make financial contributions (called "capital contributions" in business lingo) to the business to get it started. These contributions can consist of: cash, property, services, or a promise to contribute cash, property or services in the future.
In return, each LLC member normally gets a percentage of ownership in the assets of the LLC (this is called a member's "capital interest"). This interest reflects the portion of the assets of the LLC that each member is entitled to when an LLC member sells his membership interest or when the LLC itself is sold. For example, if a member has a 50% capital interest in an LLC whose assets, including goodwill, are valued at $500,000, he can expect to be paid approximately $250,000 if he asks the other LLC members to buy out his interest.
Of course, a good LLC operating agreement (or buy-sell agreement) will clearly say how members' interests will be valued so that a member can anticipate how much he'll get when he sells his interest and when he'll get it (in a lump sum, in instalment payments or in a combination of the two).
If your LLC members simply contribute cash to start up your LLC, the tax considerations are straightforward. The members are not taxed on the transaction. Instead, their membership interest is given an "income tax basis" equal to the amount of cash each member invests. This tax basis will go up and down during the life of the LLC as profits and losses are allocated and paid to members and as the LLC's liabilities fluctuate.
When a member finally sells his membership interest or when the LLC itself is sold, the tax basis at that time will be used to compute the amount of gain that the member owes taxes on.
Another popular way to fund an LLC is through the contribution of property. For example, a member may transfer her title (ownership document) to a piece of real estate to her LLC in return for a membership interest. Vehicles, business equipment and machinery, as well as patents and trademarks, are also commonly exchanged for membership interests. As long as other LLC members (if there are any) accept the property at an agreed upon value, there is no legal impediment to doing this. But in some circumstances, contributions of property (especially property that has appreciated in value) can lead to special tax consequences.
Tax issues arise when a member contributes property that has increased in value (appreciated) since the time it was purchased, inherited or received by gift. Appreciation is most likely to have occurred on real estate (a building or land) prior to its transfer to the LLC.
First - the good news. Contributions of appreciated property to an LLC are generally tax-free at the time they are made (there are some technical exceptions).
When LLC members receive a capital interest in an LLC in exchange for cash, property or services, they are also given a share of its profits and losses, called their "distributive share." (This only applies to LLCs with pass-through taxation. Owners of LLCs that elect corporate tax treatment instead receive their share of profits as salaries or dividends.) You'll see the term "distributive share" a lot in IRS publications and tax forms.
It refers to how much of the LLC's profits and losses will be allocated to each LLC owner at the end of the year. It is a bit of a misnomer, because under the pass-through tax rules an LLC's owners are taxed on all of the profits allocated to them at the end of each LLC tax year, even if these profits are not distributed. An owner's distributive share is sometimes also referred to as his "profits interest" in the LLC.
Each member's distributive share of profits and losses must be specified in the LLC operating agreement. Most often, an operating agreement will provide that each member's distributive share corresponds to his capital interest in the LLC.
One flexibility of doing business as an LLC is that the operating agreement can provide that profits and/or losses can be distributed in a manner that is not proportionate to capital interests. For example, an LLC member with a 30% capital interest could receive 40% of the yearly profits. The ability to mete out allocations of profits and losses in different ways is one of the special advantages of setting up an LLC (or a partnership).
By contrast, the founders of a corporation are unable to do this sort of disproportionate profit splitting without a lot of tinkering with the standard corporate model. Splitting of profits and losses that are disproportionate to members' relative capital interests are called "special allocations" under the tax law and are subject to IRS tax rules.
Maintaining the corporate identity: you don't need to be left out on your own to prepare the minutes of organization meeting, minutes of the first meeting, special minutes of meetings and annual minutes of meeting. You do not need to be kept in the dark about which should be dealt with immediately after you form your company and what you must tend to keep your company viable for the future.
In addition to the issues discussed in the previous paragraph, there are a number of steps which you should take to preserve your corporation or LLC's identity separate from its owners: make all annual filings with the Secretary of State and pay the franchise fee on time. Operate the company under its proper name or properly filed trade name.
Make sure that people dealing with your company understand that it is a corporation or LLC and that they are not dealing with you as an individual. Avoid, to the extent possible, giving personal guarantees.
Any document signed on behalf of the company should clearly indicate that the person signing is doing so as an officer of the corporation or as a member or manager of the LLC without personal guarantee. As noted above, treat the company as a separate financial entity. Payments to the company need to be documented as capital contributions, loans, compensation, dividends or loan repayments.
These are items which should be enumerated in the annual minutes of the Board of Directors. Stock or Membership certificates are only evidence of ownership and not necessary for ownership. Stockholder and members are not required to be US citizens and are not required to be US residents.
Ownership must appear in the company's minutes and on the transfer records. It is the better practice to issue stock or membership certificates. Any restriction on transfer must appear on the certificate to be effective against third parties. If you let employees drive their own cars on company business, make sure that both your and their insurance is sufficient and make sure that your company is listed as an "additional insured" on their policy of insurance. Do not take inconsistent positions with your insurance company (no business use) and then deduct car expenses on your company's tax return.
If you lend money to the company the company should adopt a resolution authorizing the borrowing and should issue a note. If you have a pension plan, consult your accountant or plan administrator at least annually for a review because of changes in the law or regulations. Annually review minutes and records with your attorney and accountant.
Except in the case of S corporations, the company should have a written employment contract with an owner employee and the company's minutes should reflect the adoption of the contract. If an owner leases property to the company the lease should be either favorable to the company or at arms length with the owner.
Unless you choose otherwise, "pass-through" income tax status is automatic for all new LLCs. This means that all of the LLC's profits and losses "pass through" the business and are reflected and taxed on the owners' individual tax returns. The LLC is a vehicle designed to provide general limitation of liability while also permitting, if desired, U.S. federal and Delaware income-tax treatment as if the organization were a partnership.
It is important to recognize that merely complying with the Delaware Limited Liability Company Act will not guarantee partnership tax treatment, since the Delaware Act is a statute that permits the members of a limited liability company to determine contractually which corporate tax characteristics, if any, the limited liability company will fail to possess.
The Delaware Act has been drafted in such a manner, however, that partnership tax treatment should result if the drafters of an LLC agreement do not contractually override the default provisions of the Delaware Act relating to the lack of continuity of life, centralized management and free transferability of interests.
The Internal Revenue Service has issued a revenue ruling addressing the federal income-tax classification of LLCs formed under the Delaware Limited Liability Company Act. The revenue ruling gives considerable comfort as to the federal tax treatment of Delaware LLCs.
The revenue ruling addressed two hypothetical fact situations. In the first hypothetical, an LLC was structured so as to comply with the Delaware Act's default rules, and the Internal Revenue Service ruled that the LLC would be classified as a partnership for federal income-tax purposes. (Under the Delaware Act's default rules (i) management is vested in all of the LLC's members, (ii) the LLC's debts, obligations and liabilities are solely those of the LLC, and no member is obligated personally for such debts, obligations or liabilities, (iii) all remaining members must agree to continue the business of the LLC if the membership of a member terminates, and (iv) the assignee of a member does not become a substitute member and does not acquire all of the attributes of the member's interest in the LLC unless all of the remaining members approve the assignment.)
In the second fact hypothetical, the LLC's debts, obligations and liabilities continued to be solely those of the LLC. With respect to other aspects of the LLC, however, the LLC agreement provided that (i) management was vested in three managers elected by the members, (ii) an assignee of a member could participate in the management of the business and affairs of the LLC and become a member after the assignee merely provided the LLC with written notice of the assignment, and (iii) the LLC continued following the termination of membership of a member.
The service held that under this second hypothetical the LLC would be classified as an association taxable as a corporation (and not as a partnership) for federal income-tax purposes.
The Revenue Ruling deals with two examples at opposite ends of the spectrum and provides guidance if a Delaware LLC is structured in a manner consistent with either example. The revenue ruling also confirmed that the flexible nature of the Delaware Limited Liability Company Act does not preclude partnership income-tax treatment if the Delaware Act's default provisions are not followed. However, caution and careful tax analysis are strongly recommended before deviating from the Delaware Act's default rules.
The limitation of a liability: as noted, a fundamental policy of the Delaware Limited Liability Company Act is to protect against liability to third parties of members and managers of LLCs. The Delaware Act provides that, except as otherwise provied in the Delaware Act, the debts, obligations and liabilities of an LLC, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the LLC.
In addition, the Delaware Act provides that, except as otherwise provided by the Delaware Act, no member or manager of an LLC shall be obligated personally for any debt, obligation or liability of an LLC solely by reason of being a member or acting as a manager of the LLC. Thus, regardless of the fact that a member or manager actively participates in the business of a Delaware LLC, or controls a Delaware LLC, such member or manager will not be generally liable for the debts and obligations of the LLC.
However, unlike the limited liability company statutes in most states, the Delaware Act specifically provides that a member or manager may agree in a limited liability company agreement or other agreement to be obligated personally for any or all of the debts, obligations and liabilities of a Delaware LLC.
Although it would be unusual for a limited liability company agreement to contain such a provision waiving limited liability, this flexible feature of the Delaware Act can be useful in a situation where a lack of limited liability is needed for an LLC to obtain partnership classification for income-tax purposes.
Distribution of profits to LLC members: in an unincorporated business like a partnership or an LLC, the owners share in the net profits of the business. They usually don't pay themselves a salary up-front - instead, each year (or often, each quarter), they see how much net profit remains after deducting all regular business expenses.
Then they decide how much of this profit to distribute to themselves and how much to retain in the business. The next step is to calculate how much income must be allocated to each owner for income tax purposes according to each owner's "distributive share," or "profits interest," as set out in the LLC operating agreement.
Even if some owners operate the business full-time and others (passive investors) don't work in the business at all, the working/ managing owners usually do not get a guaranteed salary. Instead, the working owners split the net profits with the passive owners according to their LLC operating agreement.
In recognition of the larger contribution made by the active owners, typically the operating agreement states that they get a larger share of profits than the passive owners do. In addition, the working owners sometimes get all business profits up to a certain level, with any additional profits divided with the passive owners according to the operating agreement.
Of course, it's also possible for an LLC owner who works in the business to receive a salary. This is particularly likely in a small business that produces profits year after year, or in a business where one managing owner does all the work for a bunch of passive investors. In this scenario the working/managing owners may receive a guaranteed salary that is paid regardless of yearly fluctuations in the profit-level of the business.
Since the salary is guaranteed to be paid regardless of profits, it is a business expense and can be deducted by the business in computing its net profit. This, in turn, reduces the amount of profits the other owners are allocated and taxed on (of course, the other owners also receive less profits under this scenario).
The working/managing owners who are paid guaranteed salaries pay individual income taxes on the salary payouts plus, of course, their allocated share of any additional money (profits) they divide with the other business owners. But again, arrangements of this sort are the exception, not the rule, for most smaller unincorporated businesses. Before setting up a guaranteed salary for you or one of your co-owners, talk to your tax advisor.
Members pay income taxes even if they aren't paid any profits. This is a good time to step back and consider the implications of pass-through tax treatment. A big one is that, while LLC members must pay individual taxes on all LLC net profits "allocated" to them each year under their operating agreement, their LLC is not required under the tax laws to distribute all - or, for that matter, any - of the LLC's profits at the end of the year. (If it helps you grasp this concept, think of an owner's allocated profits as profits that are "earmarked" as belonging to that owner, but that may or may not actually be distributed to that owner.)
It follows that even if a member's allocated profits are retained by the LLC, the member must pay income taxes on those profits as if she received them. At bottom, this is the big idea behind pass-through tax treatment - the IRS wants its income tax money each year; it doesn't want to wait until the LLC decides to put the money in the owners' pockets.
If the owners were allowed to avoid taxes on profits by waiting until they felt like paying them out, you can be sure that in very good income years, when profits would cause LLC owners to be taxed in higher marginal tax brackets, owners would retain the profits in the business. Then in leaner years, when LLC owners would otherwise receive little or no income, they would pay them out so as to be taxed in lower individual tax brackets.
To deal with the potential problem of owing taxes if you don't receive a payout of profits one year (say the majority of LLC members vote to keep the money in the business), many LLC operating agreements contain a provision that says the owners must receive (actually have distributed to them) at least a minimum percentage (typically 25% to 30% or more) of their share of allocated profits each year.
This minimum payout assures each owner will have at least enough cash on hand to pay individual income taxes on his share of allocated profits. (State and federal individual income taxes, after taking into account individual deductions; exemptions and credits, often reach the 25% or 30% figure.)
If your LLC has only one member (and you haven't elected corporate tax treatment), the tax reporting process is simple. The LLC itself does not have to prepare and file any tax returns. The owner simply files his regular 1040 form and attaches Schedule C, Profit or Loss From a Business, on which he reports his share of allocated LLC profits or losses, and Schedule SE, Self-Employment Tax Return, on which he figures the self-employment (Social Security and Medicare) tax he owes.
Tax tip: use a double-entry bookkeeping system. Some smaller LLCs use a single-entry bookkeeping system such as a simple business check register to keep track of their expenses and income. However, double-entry procedures help owners to organize and track the financial progress of the business better. So even if yours is a one-person or small multi-member LLC, consider setting up a double-entry system for your business.
For LLCs with two or more owners, the LLC itself must prepare and file IRS Form 1065, the same tax forms used by a partnership, unless it elects corporate tax treatment as explained in Section C, below. Since LLCs themselves don't pay income taxes on profits (their owners do), this annual partnership income return is informational only.
Unfortunately, Form 1065 is a bit complicated for the uninitiated. It requires that the business use a standard double-entry bookkeeping system, with a journal of accounts that are periodically posted to a general ledger. These general ledger accounts, in turn, are used to generate an income statement and balance sheet, both of which are necessary to complete Form 1065.
The form must also show a reconciliation of each owner's capital (ownership) account that shows his capital contributions and distributions as well as the allocations and distributions of profits to each owner.
Before deciding whether you'll formally prepare minutes or consent forms for particular decisions, you need to know whether your LLC is "member-managed" or "manager-managed." Let's clarify this legal jargon. Most state statutes provide that an LLC is managed by all its members unless the LLC articles say otherwise. For example, if the LLC organizers decide that the LLC should be managed by four out of seven members, the articles should say so.
As an alternative to member-management, the articles can elect manager-management. This means that the LLC is managed by one or more persons who are specifically designated as "managers" (the appointment of just one manager is typical). Managers may be members, officers, or anyone else (even independent contractors, for that matter).
Typical wording used in the articles to elect manager-management is "This LLC is managed by one or more managers, whose names and addresses are as follows: name(s) and address(es) of manager(s)." However, most smaller, closely held LLCs - those owned and operated by a small group of people who are active in the business - are member-managed by all members.
Typically, state LLC Acts have a section titled "Management," which sets out rules for the re-election of managers by members and recites the duties and responsibilities of managers. These statutes make it clear that the members of a member-managed LLC act in the place of managers, and are subject to the same rights and responsibilities as those set out for specially selected managers.
Another way of saying this is that the members of a member-managed LLC do not have to put on their "manager" hats to manage the LLC. They should do so as members, realizing that they are subject to the legal rules set out in the LLC Act that apply to managers in a manager-managed LLC. In a member-managed LLC, the members will make all decisions, either by holding real meetings and recording the decisions in written minutes, or by simply preparing written minutes of a paper meeting or written consents for the members to sign.
In other words, there is no need for the members to also don their manager hats and separately approve LLC decisions as managers.
But in a manager-managed LLC, where one or more persons (who may be members or nonmembers) are selected to manage the LLC, the nature of a particular decision will tell you whether the managers or the members make that decision. Here's a quick rundown of the various choices for decision making in a manager-managed LLC, geared to specific types of LLC decisions: re-election of managers.
In a manager managed LLC where the managers are elected to fixed terms (such as one- or two-year terms), the members meet (in person or on paper) or sign a consent form to elect the managers to another term or replace managers who leave the LLC. (Members in manager-managed LLCs with indefinite terms for managers do not need to vote regularly to re-elect managers, but will do so to replace managers who leave the LLC). Approval of some major decisions reserved to the members.
For most manager managed LLCs, state law, the articles, or the operating agreement reserve some types of major decisions to the members. Typically, the following decisions require approval by members: amendment to the articles or operating agreement, issuance of a new membership, admission of a transferee as a member, a vote to continue the LLC after a member withdraws, and a decision to voluntarily dissolve the LLC.
Approval of a management decision. Management decisions, such as approval of a standard sales contract, are just the sort of decisions that fall within the purview of the management team. The managers should meet or sign a written consent to signify their formal approval.
Approval of a decision that significantly impacts LLC profitability or involves the personal financial interests of one or more managers. It is wise to have all members who do not also serve as managers join the managers in approving decisions of this sort. This is easily accomplished by holding a joint meeting of all managers and members.
Or, you can have all managers and members sign a written consent to the decision. (As you'll see in the succeeding chapters, our minute and consent forms accommodate attendance and approval by either managers or members or both.) After all, if a course of LLC action will reduce or gamble LLC profits, obtaining the advance approval of all members can help avoid membership complaints later if the LLC loses money on the decision or deal.
And if an action may benefit one or more managers personally - such as a hefty pay raise for a manager (who also works as an LLC officer and receives an officer salary) or the lease of property by a manager to the LLC- asking members to approve it is just fair play and common sense. If, after full disclosure, the members approve a deal that benefits a manager personally, it's less likely that a member will complain (or sue) later.
LLC member-management: the owners of most smaller LLCs choose the standard member-management approach. Again, this means that all LLC members are responsible for managing the LLC. (A few states, such as Minnesota and North Dakota, have copied terminology found in their unincorporated association statutes, and call the managers "governors.") The reason this approach makes sense is that, in most smaller LLCs, all members plan to be active in the business, and all want to be able to vote to decide how the LLC will be run.
LLC manager-management: member-management, however, isn't the best choice for all LLCs. Under the other management option - manager-management - an LLC is managed by a single manager or a small group of managers consisting of: one or more selected LLC members; one or more non-members (usually either officers or outside investors), or a mixture of the two. The main reason to opt for manager-management instead of member-management is that you're planning to bring in outside investors who do not want to take a management role in your business.
Manager-management also may make sense for an LLC if: the LLC owners decide to hire a chief exec more qualified or suitable than the current LLC members to manage the LLC. The LLC wishes to give an outsider (a non-member) a vote in management (for instance, an outsider wishes to lend money to the LLC, but only on the condition that he be given a say in management decisions).
To give the non-member management authority, the LLC must select manager-management and create a management group made up of the members of the LLC and the outsider. The sole member of an LLC wants to manage the business but gifts membership interests to non-managing family members, who will step into a management role only when the current owner-manager steps down.
As these bullet points indicate, the people you select as managers do not need to be owners of the LLC. You can select LLC officers and executives or anyone else you wish as a manager.
Fortunately, an LLC can easily choose manager-management to handle any of these situations. You just select manager-management in your articles (required in most states) or in your operating agreement (required in the other states). In all states, just one manager is required to manage a manager-managed LLC, but there is no limit to the number of managers you can have. In most small LLCs, managers serve for an indefinite term - that is, until the members of the LLC vote to replace or remove them.
Typically, LLC operating agreements allow an LLC manager to be removed or replaced for any or no particular reason upon the vote of the full membership (non-managing members as well as managing members). Another way of saying this is that state law lets LLC members decide for themselves when managers can be removed. Some larger LLCs, however, prefer to have managers serve for a definite term, such as one year, at the end of which the members re-elect or replace the managers. This procedure is usually only used in more formal LLCs with at least several outside investors (who are non-managing members).
That's because, unlike corporations, where shareholders re-elect or replace the board of directors each year, most LLCs choose not to deal with the formality of a periodic review and election of managers, unless they have outside investors who demand it. In fact, most LLCs pick an initial management team and stick with it for the long term, unless there is a problem and one or more managers need to be replaced.
Manager-management will not affect limited liability. In a manager-managed LLC, all members, managing as well as non-managing, get to keep their personal liability protection. Note that this is a fundamentally different approach than the liability protection that applies to limited partnerships, where at least one general partner must be personally liable for partnership debts and liabilities.
If you do choose to go the manager-management route, it's important to realize that state law still leaves certain voting rights in the hands of the non-managing members. As just mentioned, LLC members have the right to remove and replace managers. Also, non-managing members have the right to approve fundamental changes to the LLC and its membership, including the power to amend the articles or operating agreement of the LLC, to merge or dissolve the LLC, to approve or deny the admission of new members and to approve or deny the transfer of an LLC membership from an existing member to an outsider.
Members who don't work in or manage the LLC do not pay self-employment taxes. Under current IRS regulations, LLC members who are not active in the business should be able to avoid paying self-employment taxes on their share of allocated LLC profits.
Asset protection issue: a limited liability vompany ("LLC") offers the same asset protection as a corporation in Delaware and almost every other state. If you sign agreements in the name of the LLC, then the LLC is the responsible party on the agreement, not you as an individual owner. If the business is not successful, or if it incurs a large unexpected debt (which you did not personally guarantee or sign for), then your other personal assets (like home, auto, investments, etc.) are protected from the LLC creditors.
In order to have the asset protection benefits of an LLC, especially a sole member LLC, the owner must observe the formalities and operate the business as an LLC. There should be adequate capitalization depending on the nature and extent of the business. The owner should have annual meetings and produce statements about the past business year and expectations for the future.
The owner must be careful to enter into contracts through the LLC, and not personally. The owner should use checks and stationery to give notice to third parties that they are dealing with an LLC. These formalities are easy to observe after discussion with the lawyer and review of helpful documents which we will provide.
The single member LLC should be operated as a separate business. This is not at all difficult. The owner needs a separate business checking account, and set of books. The same should be done even if operating as a sole proprietorship. The end of year tax work can be done by an accountant quickly and efficiently if you have a separate set of books for your business.
The sole member LLC will not require a separate federal income tax filing. The income tax can be reported on schedule C of your personal tax return. For federal income tax purposes the single member/owner LLC is disregarded.
Cautions: an LLC will not protect the owner against a claim based on the negligence or professional malpractice (if the owner is a licensed professional) of the owner. These types of claims are distinguished from contractual claims. The LLC will not protect the owner from LLC debts which the owner has personally guaranteed.
Nor will it protect against claims against the owner who has fraudulently used the LLC for an inequitable purpose to the detriment of the claimant. Having given all these cautions, the courts in Washington understand that one of the primary features of an LLC or a single owner corporation is to limit liability, and this is a legitimate function of the corporation or the LLC.
Running an LLC can be as routine as running a corporation or partnership or other business entity. However, setting up an LLC can be complex. If the LLC will hold real estate, there will be title transfer issues such as title insurance endorsements, liability insurance coordination and review of policies, a deed to be prepared to transfer title.