Setting Up an LLC Company FAQs

Simply one of the most exciting new ways to organize a new business to have been developed in the last couple of decades! It is a new type of status that maximizes both tax advantages and liability protection. With a "C" corp., owners are taxed twice. First on corporate profits and then on personal income when profits are distributed as dividends. The situation is somewhat improved with an "S" corporation, in that corporate profit can flow through personal income, thereby subjecting it only to single taxation. The problem with "S" corporations is that they are fairly restricted and therefore lack flexibility.

A limited liability company (LLC) is an entity formed under state law by filing articles of organization as an LLC. Unlike a partnership, none of the members of an LLC are personally liable for its debts. An LLC may be classified for Federal income tax purposes as if it were a sole proprietorship (referred to as an entity to be disregarded as separate from its owner), a partnership or a corporation.If the LLC has only one owner, it will automatically be treated as if it were a sole proprietorship (referred to as an entity to be disregarded as separate from its owner), unless an election is made to be treated as a corporation.

If the LLC has two or more owners, it will automatically be considered to be a partnership unless an election is made to be treated as a corporation. If the LLC does not elect its classification, a default classification of partnership (multi-member LLC) or disregarded entity (taxed as if it were a sole proprietorship) will apply.

A limited liability company ("LLC") is a separate legal entity that offers an alternative to partnerships and corporations by combining the corporate advantages of limited liability with the partnership advantage of pass-through taxation. An LLC is created and comes into existence when articles of organization are filed with the proscribed fees, and accepted by the proper state authority.

Why would I consider an LLC or limited liability company form of business organization? A limited liability company (LLC) is a hybrid organization that has characteristics of both a corporation and a partnership. Its members (comparable to corporate shareholders) receive interests in the LLC in exchange for property, money, or services.

Like a corporation, it is a separate legal entity for purposes of limited liability of its members. It has the tax benefits, however, of a partnership. It also has the freedom from many of the legal formalities that govern corporations (e.g., annual reports, director meetings, shareholder requirements, etc.).

To create an LLC, members file articles of organization with the state and pay filing fees. Members should also have operating agreements, similar in concept to a partnership agreement, that explains the operation and management of the business. There has been a lot of fanfare regarding this form of business enterprise and the law is still germinating.

Each state has its own set of statutes governing LLCs - which must dovetail with IRS guidelines which are in constant evolution. For this reason, it is a necessity to have the advice of an attorney to determine how the LLC law in your state best applies to your situation.

An LLC is owned by its members. The members of an LLC are like partners in a partnership or shareholders of a corporation. A member will more closely resemble a shareholder if the LLC utilizes a manager or managers, because under that situation the members will not participate in the management of the LLC. However, if the LLC does not utilize managers, then the members will more closely resemble partners because they will have decision making powers in the LLC.

The member's ownership in the LLC is represented by their respective "membership interest", in the same manner as a partner has an "interest" in a partnership or a shareholder has stock in corporation.

Can an LLC have just one owner? Yes, in most states. A few states require two more owners (members). There may be a simple way to meet this requirement: If you are married, your spouse may be willing to serve as the second member.

How is an LLC managed? There are two basic ways. Most LLCs are member-managed. This mean that all the members jointly run the business. Some LLCs are manager-managed. This means that they designate one or more members to be managers or perhaps they hire one or more outside managers. It is possible, as well, to have an LLC that is managed by a combination of members and outside managers.

If you get too complicated about the management arrangements, you may compromise one of the main benefits of using the LLC as your business format: keeping things simple.

A limited liability company (LLC) is an entity formed under state law by filing articles of organization as an LLC. Unlike a partnership, none of the members of an LLC are personally liable for its debts. An LLC may be classified for Federal income tax purposes as if it were a sole proprietorship (referred to as an entity to be disregarded as separate from its owner), a partnership or a corporation. If the LLC has only one owner, it will automatically be treated as if it were a sole proprietorship (referred to as an entity to be disregarded as separate from its owner), unless an election is made to be treated as a corporation.

If the LLC has two or more owners, it will automatically be considered to be a partnership unless an election is made to be treated as a corporation. If the LLC does not elect its classification, a default classification of partnership (multi-member LLC) or disregarded entity (taxed as if it were a sole proprietorship) will apply.

Pass-through taxation LLC's allow for pass-through taxation, allowing earnings of an LLC to be taxed only once. The earnings from an LLC are treated in a similar manner as earnings from a partnership, sole proprietorship and most S corporation.

What is the difference between a limited liability company and a limited liability partnership? A limited liability company consists of one or more members which may be individuals, partnerships, limited partnerships, trusts, estates, associations, corporations, other limited liability companies or other business entities. The members of a limited liability company are afforded limited liability similar to shareholders of a corporation and have pass-through taxes comparable to a partnership.

A limited liability partnership must have two or more partners whose type of business is to engage in the practice of public accountancy, the practice of law or the practice of architecture.

What is the difference between a limited liability company and a limited partnership? A limited partnership consists of at least one general partner and one limited partner. The general partner is potentially liable for all the obligations of the partnership. The limited partner has limited liability. Limited partners may jeopardize their limited liability status if they actively participate in the business of the partnership.

A limited liability company consists of one or more members which may be individuals, partnerships, limited partnerships, trusts, estates, associations, corporations, other limited liability companies or other business entities. The members of a limited liability company are afforded limited liability similar to shareholders of a corporation and have pass-through taxes comparable to a partnership.

If you want to become familiar with the description and the contents of an LLC formation packages, offered by Coddan and to find above, what kind of service is included in this or that company incorporation package, to get an idea about the price of annual renewal of the service, and about the general legal requirements to the LLC formation within the State of Delaware, please, select the package you need from the top of this page.

What do I need to do to incorporate? Step 1. Decide on the type of company you want: a corporation or limited liability company (LLC). Step 2. Choose your company's name and corporate ending. If a corporation, the name must end: Corporation, Company, Incorporated, Limited, Syndicate, Union, Society, Club, Foundation, Fund, Institute, Association; or use one of the abbreviations: Co., Corp., Inc., or Ltd. If an LLC, the name must end: LLC, L.L.C., or Limited Liability Company.) Step 3. Place your order!

An LLC is a creation of statute. An LLC can be formed and exist as a matter of law only if a state statute enables the creation of LLCs. Unlike a partnership, an LLC can neither be implied at law nor exist by estoppel. An LLC is an entity that is an unincorporated association and that has a duration that is not perpetual. In most states, an LLC can be formed by one organizer but it must have two or more members. The District of Columbia statute requires two or more members while Virginia and Maryland have enabled the formation of single member LLCs. A member can be a natural person, a corporation, a partnership or another LLC.

If the proper election has been made, the LLC will be classified as a partnership and not subject to corporate income tax for both federal and state income tax purposes. An LLC can be formed for any business purpose as long as the purpose is a lawful one. The members may limit the powers of the LLC or restrict how the powers are exercised as long as the limit or restriction is contained in the articles of organization. If no such limit or restriction is contained in the articles of organization, then the LLC may possess and exercise all powers that are necessary or convenient to carry out the business purpose of the LLC.

The District of Columbia, Maryland and Virginia statutes expressly confer limited liability on the members of the LLC. A member of an LLC is not a proper party to a cause of action against the LLC except where another member is asserting a right against the LLC or the LLC is asserting a right against a member or where the cause of action is a derivative action.

Unlike a partnership under the Uniform Partnership Act (UPA) that is in effect in many states, the LLC may acquire and hold property in the name of the LLC rather than in the names of the members. Also, unlike a partnership, an LLC can sue or be sued in its own name. A member can sue the LLC in a derivative action to the same extent and under the same conditions that a shareholder can sue a corporation.

The answer to this question varies on a case-by-case basis. Which business entity is best for you depends upon your situation and your goals. Both LLCs and corporations provide the "protection" discussed in the previous question. However, each is taxed differently. For instance, an LLC is generally taxed as a partnership or sole proprietorship.

A review of the primary attributes of other forms of business organization is useful to understand the nature of LLCs:

Corporation: the shareholders have limited liability but the corporation is taxable at the entity-level. The shareholders must comply with corporate formalities such as annual meetings, minutes and resolutions, by-laws and elections of boards and officers. A corporation does not dissolve upon the dissociation of a shareholder.

Statutory close corporation: the shareholders have limited liability but the corporation is taxable at the entity level. The shareholders can dispense with corporate formalities and operate with only a shareholder agreement. The number of shareholders is limited usually to 35 and cannot make a public offering of its shares. The corporation does not dissolve upon the dissociation of a shareholder.

S chapter corporation: the shareholders have limited liability and the S election enables the corporation to be taxed in a manner similar to pass through entities. The number of shareholders is limited to 75 and all of them must be U.S. citizens or permanent residents. The S corporation can have only one class of shares. The corporation does not dissolve upon the dissociation of a shareholder.

General partnership: the partners lack limited liability , (see, however limited liability partnerships). The partnership is taxed as a pass through entity. There are no entity formalities and the partners can operate with only a partnership agreement. The partnership dissolves upon the dissociation of a partner unless there are two or more remaining partners who agree to continue.

Limited partnership: at least one partner must be a general partner who lacks limited liability, (see, however, limited liability limited partnerships Va.) The liability of the other partners is limited to the amount of their contributions to the partnership. It is taxed as a pass through entity. The partnership dissolves upon the dissociation of the general partner unless there are two or more remaining limited partners agree to continue with a new general partner.

LLC statutes are essentially enabling legislation as opposed to regulatory or administrative legislation. They contain mandatory provisions and default provisions. Mandatory provisions contain rules or requirements with which the members must comply in order for the LLC to be a legally created and operated business entity. Mandatory provisions almost always contain the connector "shall" or "must" in the language of the provision.

Default provisions contain rules or requirements that will govern the conduct of the members or the affairs of the LLC if the members have not made an agreement with respect to matters covered by the default provisions. Default provisions usually contain the clause "unless otherwise agreed by the members" or "in the absence of agreement by the members".

To avoid the legal effect of a default provision and to assure that the particular agreement by the members shall control on a particular issue, that agreement must be in writing and contained in either the articles of organization or the operating agreement. An oral agreement on a particular issue shall not be enforced and, regardless of the intent of members, the default provision on that issue will govern.

Each LLC is required to create and maintain certain basic information and records at is principal office. Each member has the right, upon reasonable request, to inspect the information and copy any records. The required information and records include the names and identifying information of each member, copies of the articles of organization as they may be amended and the certificate of organization as it may be amended, copies of all local, state and federal tax returns and reports for the 3 most recent years and copies of any operating agreement. If not contained in the operating agreement, the LLC must maintain a description in writing of the contribution of each member, the times, if any, at which additional contributions must be made, any right of a member to receive or of the LLC to make a return of contribution and any event the occurrence of which will cause the LLC to dissolve and the winding up of the business of the LLC. The failure of the LLC to create and maintain the required information and records will not cause the LLC to lose its status as a limited liability company. An aggrieved member could seek and most likely obtain injunctive relief against the LLC for failure to maintain the required information and records.

One of the best reasons for incorporating, or forming a limited liability company, is to separate your personal assets from your company's assets. If you conduct business without using a corporation, or limited liability company, you place your assets at risk. Separating your personal property from your business property, and using a legal form such as a corporation, can help protect your personal property. Incorporation or formation of a limited liability company also allows you to take advantage of the statutory and judicial laws of Delaware, to help you plan how your business runs. An example: Delaware Law allows for a version of the Limited Liability Company often called a Serial LLC. An LLC is normally very simple to create.

The major difference between an LLC and a sole proprietorship or a partnership is the limitation of liability an LLC brings to you. But say that you wanted to conduct more than one type of business, and you didn't want to create a separate corporation or limited liability company for each. The "Serial" LLC allows different lines of business to be treated separately from each other from a liability standpoint. So, for example, an LLC that owns several apartment buildings may insulate the LLC from liability for each individual building, if the operating agreement allows for it, and the operating agreement is followed. For more information take a look at the Limited Liability Company Act of the Delaware Code (especially, Title 6, Section 18-215; Series of members, managers or limited liability company interests).

Liability Protection. As an owner or director of a U.S. corporation, you cannot be held personally liable for its business obligations and activities (we surely need not point out how such protection from liability can be a lifesaver under certain economic circumstances). Although the liability protection of a European corporation is very similar, setting up a European corporation is quite expensive and requires a substantial amount of paid-in capital (for example, Germany requires a minimum cash capital of US$55,000, and during the two-month set-up process the incorporator is personally liable with all of his assets). Since the shareholders and directors of a U.S. corporation enjoy much higher liability protection than in a European corporation, a U.S. corporation is to be recommended even for businessmen who have no intention of being active in international business.

Anonymity. This should not be regarded as a call for tax evasion or other criminal activities. But there are many other good reasons for which one may wish to remain anonymous. In the states recommended by us, the owner (i.e. the shareholder) of a corporation does not need to be registered. Only the founder (i.e. we) and the directors and officers are registered with the state. You yourself can remain completely anonymous by appointing others to be directors and officers. Our UK, EU and foreign customers often ask about anonymity, confidentiality and privacy with regard to the owners, officers and directors of a corporation or members and managers of a LLC formed in Delaware.

The owners of an LLC are called members - not shareholders. And they own membership interests - not shares of stock. A membership interest in usually stated as a percentage. So in an LLC with five owners who have invested equally in the business, each would normally have a 20% membership interest. The attributes of the members vary according to the management structure utilized by the LLC, and thus members in one LLC may be similar to partners, while in another, be more like shareholders. For example, if the management is vested equally in the members, then they take on the characteristics of partners. If management is vested in select members, most of the members have attributes of limited partners. If the management is vested in outside managers, however, members possess shareholder-like qualities.

Like shareholders in a corporation, the members of a LLC are protected from personal liability in excess of their capital investment. Like the partners in a partnership, members of a LLC can flexibly allocate management responsibilities and gains and losses. The LLC also allows members to contribute passively as in the limited partnership. Unlike the limited partnership, however, where the general partner remains personally liable in the event of a business loss, the LLC allows all members to contribute without risking personal liability.

In addition, the names of members are not disclosed in the certificate of formation, thereby preserving confidentiality. The owners, officers and directors of a corporation and the members and managers of an LLC can remain anonymous in Delaware corporations and LLC's during and after their formation in Delaware. In Delaware the only name and address, which is required to be on record, is the name and address of the Incorporator and registered expert. Delaware will accept the filing of the Annual Corporation Franchise Tax Report and payment without the listing of Officers and Directors and signature. This explanation and comparison will help you make your choice of State if you are looking for anonymity, privacy and confidentially when you incorporate or form Delaware LLC.

Unlimited business activities. In the states recommended by us, our attorneys are in a position to formulate the Articles of Incorporation in such a way that the business activities are not restricted to any particular purpose, but that the corporation may engage in any business or activity not forbidden by law. Thus, the corporation does not need to be re-organized in case it wishes to engage in a different business enterprise.

Capitalization. Capitalization through selling shares. A U.S. corporation can pledge its shares, which represent a mathematically precise proportion of the company, as security for loans or sell them as investment objects. (In comparison with this, a limited liability Company such as a GmbH cannot issue shares and is difficult to capitalize.) A U.S. corporation can sell its shares to investors throughout the world, although for sales within the USA there are certain restrictions imposed by the Securities & Exchange Commission (SEC) and state agencies.

Capitalization through bank loans. Not counting branch offices, there are a total of 24,437 U.S. banks with capital in excess of 50 trillion dollars. (There are less than half as many banks in all the rest of the world.) With such competition between money lenders, it is understandable that the credit climate in the USA is significantly more favorable than anywhere else in the world.

Capitalization through venture capital. Venture capitalists control billions of dollars of investment capital. Since a venture capitalist participates in the profits of the capitalized venture, he is naturally much more risk-friendly than U.S. banks, which are forbidden to participate in the financial success of an enterprise. Thus, if a corporation cannot offer sufficient security for a bank loan or afford the expense of going public, a connection with a venture-capital company is the most promising path to capitalization.

Articles of Organization must be prepared and filed with the state and filing fees, initial franchise taxes, and other initial fees must be paid. If your LLC is formed through Coddan Ltd, all you need to do is complete our simple order form. We will prepare and file your articles of organization and pay the initial filing fees.

LLCs are structured differently from corporations and have no directors, officers or shareholders. Instead, LLCs have members and managers. A member is similar to a shareholder in a corporation in that the member owns an interest in the LLC. Managers are the people or entities that manage the operation of the organization. Managers are not always required in an LLC. If the LLC does not use managers, the members act as partners in managing the organization and making decisions.

No, an attorney is not a legal requirement. You can prepare and file the Articles of Organization yourself; however, you should understand the requirements of your intended state of formation. You can use our service to form your LLC and save money on attorney's fees. However, if you are unsure of what entity type would be most beneficial to your business, consult an attorney or accountant.

Choose the name of your LLC carefully. It is very important that your name portray the image you want for your new company. Legally, the name you select must not be "deceptively similar" to any existing company or must be "distinguishable on the record" of your state.

The IRS does allow one member LLCs to qualify for pass-through tax treatment; however, taxation of one person LLCs at the state level may be different.

A state-registered LLC can be taxed for federal income tax purposes as a partnership. Under the check-the-box rules, an LLC can elect partnership status to avoid taxation at the entity level as an "association taxed as a corporation." If an LLC is not taxed as a partnership, it will be taxed at the entity level similar to a standard or C corporation. The state income tax treatment of LLC profits and losses may or may not mirror the IRS tax treatment depending on the state. For specific information on your state rules visit your state's web site. Please note that California LLCs are subject to an annual minimum franchise tax of $800 per year. The first payment must be made within 3 months of forming your LLC. The state of California does send a bill to help you to remember to make this payment.

An LLC is owned by its members. They are analogous to partners in a partnership or shareholders in a corporation, depending on how the LLC is managed. A member will more closely resemble shareholders if the LLC utilizes 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.

An LLC may be managed by its members (owners) or by selected managers. If the LLC is to be managed by its members, it operates much like a partnership. Each member has an equal say in the decision making process of the company. If the members choose, they may elect a manager or managers to act in a capacity similar to a corporation's board of directors. These managers are in charge of the affairs of the corporation. Member management is the normal default rule of state law. This means that if managers are not selected in the articles of organization, the members will direct the affairs of the LLC.

LLCs offer numerous advantages. Pass-Through Taxation. LLCs allow for pass-through taxation. This means that earnings of an LLC are taxed only once. The earnings of an LLC are treated like the earnings from a partnership, sole proprietorships and most S corporations. Limited Liability. The LLC owner's liability is generally limited to the amount of money which the person has invested in the LLC. Thus, LLC members are offered the same limited liability protection as a corporation's shareholders. Flexible Management Structure and Flexible Ownership is Permitted. Like general partnerships, LLCs are generally free to establish any organizational structure agreed on by the members. Thus, profit interests may be separated from voting interests.

A limited partnership and a limited liability company offer the same degree of asset protection. The investment interests in an LP or LLC are not "exempt" from levy by creditors of the limited partner. There is no constitutional or statutory provisionin Delaware which protects a limited partner's or an LLC's member's investment. Asset protection is available by virtue of the limited procedural remedy given to creditors to levy upon a debtor limited partner's interest and an LLC membership interest.

A creditor has no right to seize property within a partnership or an LLC to satisfy the debt of a partner or member. Moreover, in a properly drafted LP agreement or LLC agreement, a creditor has no right to vote or inspect the books and records of the LP or LLC. Under Delaware law, a creditor's rights are limited to receiving distributions of cash or other property made from the LP or LLC to limited partners or LLC members. In most closely held business arrangements where one partner or member has a creditor problem, a cooperative general partner/manager will retain profits inside the LP/LLC and make no distributions which might be taken by a lurking creditor. If the general partner/manager does not order distributions of cash or property, then the creditor gets nothing.

In addition, a creditor with an active charging lien may incur income tax liability. A 1997 Revenue Ruling suggests that where a creditor has a charging lien on an LP or LLC interest and the general partner/manager does not distribute partnreship income, the creditor, not the limited partner/member, is responsible for paying the tax on allocated income. The charging lien may become a "poison pill" as long as the creditor receives no money but incurs income tax liability in his effort to collect a judgment debt.

One practical limitation with the limited liability company and partnership charging lien protection is that cash and assets can remain trapped inside the entity by a "patient creditor" holding a charging lien. Even though the creditor cannot get assets inside the entity, neither can the member or limited partner because any attempted distribution would be seized by the charging lien. A member or limited partner may need access to cash from the entity to maintain a normal lifestyle. One solution is for the LLC or LP to purchase an annuity naming the debtor as a beneficiary. Florida courts have held that annuity payments remain protected after distribution and deposit in a bank account so long as the funds are segregated. Therefore, an LLC or LP should be able to distribute annuity proceeds to the debtor/beneficiary despite the existence of a charging lien.

Many corporations own and operate more than one business, and likewise, many individual real estate investors own multiple properties legally titled under a single name or business entity. A problem with "single-pot" ownership of multiple businesses or property is that any legal liability relating to one business or property jeopardizes all other assets. Therefore, most owners of related businesses and real estate investors with several properties seek to separate ownership so that lawsuits against one business or one property will not jeopardize the owner's other investments. Traditionally, liability segregation meant setting up new and different business entities to own each business or each property. As businesses grow, multiple entity ownership can become complicated and expensive.

The Delaware legislature created a new type of legal entity which aims to solve this planning problem by permitting a single limited liability company to own multiple subsidiary limited liability companies each of which wons a single-asset business. This new entity is called "The Delaware Series LLC." Although a Series LLC must be created in Delaware, it can register to do business or own property in any other state. This innovative concept allows one LLC to establish separate series, or units, under the same LLC umbrella. Each unit of a Series LLC can own distinct assets, incur separate liabilities, and have different managers and members. A Series LLC pays one filing fee and files one income tax return each year.

Under Delaware statutes, liability incurred by one unit does not cross over and jeopardize assets titled in other subsidiary units of the same Series LLC. Although the same liability isolation can be achieved in any state with multiple entities, the Delaware Series LLC, in theory, offers superior and more economical asset protection under a single roof.

The disadvantages of an LLC include: More Paperwork Than an Ordinary Partnership. Documents must be filed at the state level to create an LLC, which is not the case with a general partnership. Dissolution Date. Some states require that a dissolution date be listed in the articles of organization. This date may be amended. Further, certain events, such as death of a member, a member leaving, bankruptcy, etc. can be a dissolution event. A corporation has unlimited life and these events are not dissolution events for a corporation. Newer Entity Type. The LLC is a newer entity, and people are not as familiar with the LLC as a corporation.

After you have dealt with the questions above, articles of organization must be filed with the state government and initial fees must be paid. We'll take care of that for you, professionally and promptly. After your Articles are filed, your Limited Liability Company should hold an organizational meeting and must have an Operating Agreement in order to complete the formation process. Membership interest documents should be distributed to the members and records kept of such distributions.

Non-lawyer formation services typically sell you a book with a sample operating agreement, sample organization minutes and sample membership interest documents. With them, it's your job to do the actual Operating Agreement, the actual organizational minutes and the actual membership interest documents. Moreover, you are left on your own as to subsequent record keeping. In most states, neither an expensive book nor a seal is required. For $185 instead of the $60-$100 you pay for these normally unnecessary items, we will do the actual Operating Agreement, do the actual organization minutes, do the actual membership interest documents, provide you with checklists to assist you in subsequent record keeping, and provide you with the forms and instructions you need to get your federal tax identification number.

A registered expert is used to provide a place for the service of process, notice or other official communications. It is usually required that LLC's have a registered expert and that the registered expert reside in the state.

The EIN, often referred to as the Federal Tax Identification Number, is a number that is assigned to a business by the IRS. It is often required of businesses for certain functions, such as opening bank accounts, hiring employees, etc.