Limited Liability Companies (LLC): The Basics

by Cooley LLP
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For a general overview of the different types of business entities, see my other article Choosing the Correct Business Entity: The Basics. For a quick reference, see also the chart in our article Comparison of C corp, S corp and LLC Entity Types.

Characteristics

The limited liability company (LLC) is a form of business organization which in recent years has rapidly gained popularity in the United States.  A properly structured LLC offers its owners (referred to as “members”) the pass-through federal tax treatment of a partnership, while also protecting members from personal liability for the obligations of the business.  The members of the LLC have no personal liability for the obligations of the LLC (but, as is also true for corporate directors and officers, will still have personal liability for their individual acts and omissions in connection with the LLC’s business).

LLC vs. Partnership vs. S-Corp

For all practical purposes, an LLC operates as a limited partnership without the legal requirement of having a general partner who bears ultimate liability for the obligations of the partnership.  An S Corporation also has both the limited liability and most of the federal tax pass-through features found in the LLC, but ownership is limited to 100 stockholders, all of whom must be individuals, certain tax exempt organizations or qualifying trusts or estates and none of whom may be non-resident aliens, and can have only one class of stock.  An LLC has none of these restrictions.  However, unlike a corporation, in a number of states an LLC must have at least two members.

Formation and key documents

An LLC has two principal charter documents.  The first is a short (one to two pages) document filed with the secretary of state which sets forth the name of the LLC, its address, its agent for service of process, term and whether it will be governed by the members or managers appointed by the members.  This document is generally called the Certificate of Formation (Delaware) or Articles of Organization (California).

The second charter document for an LLC is its operating agreement which is analogous to (and closely resembles) a partnership agreement.  The operating agreement specifies how the LLC will be governed, the financial obligations of the members (for example, additional capital calls could be forbidden, voluntary or mandatory) and how profits, losses and distributions are shared.  As with a partnership agreement, the operating agreement for an LLC will be tailored to suit the needs of each individual LLC, with the attendant expense of a specialized legal agreement.  Again, boilerplate documents should be avoided.

When you might want to use an LLC

The LLC is not suitable for businesses financed by venture capital funds because of tax restrictions on the funds’s tax-exempt partners.  However, an LLC can generally be very attractive for businesses financed by corporate investors and to a lesser extent (because of the passive-loss limitations) wealthy individuals.

The LLC is the entity of choice for the start-up entity seeking to flow-through losses to its investors because:

  1. it offers the same liability protection to all its members as does a corporation;
  2. it can have corporations and partnerships as members (unlike an S corporation) and is not subject to any of the other limitations that apply to S corporations; and
  3. losses can be specially allocated entirely to the cash investors (in the S corporation losses are allocated to all the owners based on share ownership).

In addition, the LLC can be incorporated tax-free at any time.  For example, after the initial start-up losses have been allocated to the early round investors, the LLC could be incorporated to accommodate investment from a venture capital fund in a conventional preferred stock financing.  Alternatively, incorporation could be deferred until a public offering.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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