Foreign limited liability companies' classification problems: addressing "continuity of life" under Rev. Rul. 93-4.

Overview

Limited liability companies (LLCs) have become attractive vehicles for companies joining together to venture into new business opportunities both domestically and overseas. LLCs afford the user limited liability and, if structured properly, partnership tax treatment.(1). At last count, 35 States(2) now have enacted limited liability company statutes, and 10(3) of the remaining 15 States have limited liability company legislation pending.(4)

The Internal Revenue Service has also been doing its part. It has issued revenue rulings approving partnership tax treatment for seven LLC statutes(5) and included in its 1993 business plan a project relating to ruling requests that LLCs are treated as partnerships for federal income tax purposes.6 These actions have gone a long way to assure that users of domestic LLCs will have certainty of tax treatment as long as they adhere to applicable directives.

Unfortunately, the same cannot be said of LLCs organized under the laws of foreign countries. If anything, tax classification of foreign LLCs has become more problematic with the issuance of Rev. Rul. 93-4, 1993-3 I.R.B. 5. The ruling, which addresses whether a German GmbH lacks the corporate characteristic of continuity of life, holds that automatic termination of the entity on the occurrence of certain events, "without further action," will result in the entity's lacking the corporate characteristic of continuity of life. Many foreign statutes, however, do not allow automatic termination "without further action." Therefore, the entity fails this corporation characterization test and runs the risk of being treated as an association taxable as a corporation for U.S. tax purposes.

This article explores the IRS's recent tack on the issue of continuity of life by examining both public and private rulings and recently issued classification regulations addressing this issue in the context of domestic limited partnerships, and their implications for foreign LLCs seeking U.S. partnership classification. These issues are examined by focusing upon LLCs organized under the United Kingdora's Companies Act of 1985.(7)

Partnership Classification

For an entity to be classified as a partnership for federal income tax purposes, it must lack two of the four corporate characteristics: limited liability, centralized management, free transferability of interests, and continuity of life(8). These characteristics are tested by examining local law to determine whether the characteristics exist.(9) Because LLCs by definition possess limited liability, the focus in obtaining partnership classification is upon the other three characteristics.(10)

Treas. Reg. 301.7701-2(c)(1) provides that centralized management exists "if any person (or any group of persons that does not include all the members) has continuing exclusive authority to make the management decisions necessary to the conduct of the business for which the organization was formed." The analogy drawn is to a board of directors of a corporation. In Rev. Rul. 93-6, 19933 I.R.B. 8, the IRS held that centralized management is a legal concept that cannot be vitiated by the owners' assuming management roles if state law provides for representative management. Hence, a Colorado LLC with five members was found to have the corporate characteristic of centralized management even though all five members were also the sole managers of the company. Because this corporate characteristic is found to be present, the LLC is forced to look to the remaining two characteristics to obtain partnership classification.(11)

One of the remaining two characteristics, free transferability of interests, does not exist unless "members owning substantially all of the interests in the organization have the power" to transfer their interests.(12) Under Treas. Reg. 301.7701-2(e)(1), members must be able to substitute for themselves, without the other members' consent, a person who is not a member of the organization; the transferor must be able confer upon his substitute all of the attributes of his interest in the organization. Free transferability does not exist if a member must gain the other member's consent for his transferee to be admitted to the organization and participate in its management. Withholding this right of full substitution is enough for a partnership to lack free transferability, and this is often the method by which partnerships lack one characteristic.(13)

In Rev. Proc. 92-33, 1992-1 C.B. 782, the IRS stated that "a partnership lacks free transferability of interests if, throughout the life of the partnership, the partnership agreement expressly restricts (within the meaning of section 301.7701-2(e)(1) of the regulations) the transferability of partnership interests representing more than 20 percent of all interests in partnership capital, income, gain, loss, deduction, and credit." Because the IRS has reserved the right not to follow this guideline whenever "appropriate in the interest of tax administration," it may not follow this standard when examining LLCs. Typically, however, an LLC will attempt to satisfy this test by providing that no interest may be effectively transferred without the consent of all the remaining members.

Continuity of life is a characteristic that an entity must lack to obtain partnership status. This characteristic is discussed in the next section.

Continuity of Life

a. Consent to Continue. Continuity of life is present unless-the occurrence of one or more specific events to any one or more members causes the dissolution of the organization. Treas. Reg. 301.7701-2(b)(1) provides that "dissolution events" are the death, insanity, bankruptcy, retirement, resignation, or expulsion of any member. Simply because the organization is chartered for a limited duration, and not in perpetuity, does not mean that the organization lacks this corporate characteristic. Rather, the dissolution must occur upon the occurrence of one of the foregoing events.

Recently, the IRS issued final regulations concerning continuity of life for limited partnerships.(14) These regulations accord limited partnerships more flexibility to reorganize following an event of dissolution. The prior regulations had provided that the retirement, death, or insanity of a general partner caused a dissolution of a limited partnership unless the remaining general partners or all remaining members agreed to continue the partnership. Thus, a "reconstitution" provision, which permitted the continuation of the business with less than unanimous consent of the remaining partners following an event of dissolution, could have caused the partnership to be deemed to have continuity of life. In contrast, the amended regulations provide that a partnership will not have continuity of life if it will be reconstituted upon the retirement, death, or insanity of a general partner by the remaining general partners or a majority in interest of the remaining partners. This is consistent with Rev. Proc. 92-35, 1992-1 C.B. 790, which states that a partnership lacks continuity of life if, upon the bankruptcy or removal of a general partner, a majority in interest of all remaining partners must agree to continue-the partnership.(15)

The amended regulations, however, do not on their face apply to LLCs, and the IRS has not issued comprehensive guidance concerning state limited liability statutes. Rather, the IRS has analyzed the statutes on a state-bystate basis, presumably because of their differences in approach. Some LLC statutes provide that, following an event of dissolution, the LLC may be continued only upon the consent of all the remaining members. Such a provision ensures that LLCs will lack continuity of life.(16)

Other state statutes provide more flexibility, allowing for reconstitution upon a vote of the majority of the remaining members or upon the consent of all remaining partners unless the articles of association provide otherwise.(17) In Rev. Rul. 93-38,1993-22 I.R.B. 4, the IRS ruled that a Delaware LLC, organized under a statute allowing flexibility in its reconstitution provisions, lacked continuity of life because the agreement did not provide that less than unanimous consent would allow the partnership to continue after the occurrence of a dissolution event.(18) Similarly, Rev. Rul. 93-53, 2993-26 I.R.B. 7, holds that a Florida LLC is a partnership because its articles of organization did not provide for reconstitution by majority vote; because, Florida's statute requires unanimous consent, continuity is lacking.

The IRS has taken a stricter approach in respect to continuity of life with LLCs than with partnerships. To lack continuity, domestic LLCs must provide by statute or agreement that unanimous consent is required to continue after the occurrence of a dissolution event, whereas limited partnerships require only the other general partners or a majority of all the remaining partners vote for its continuation. The rationale for this distinction is unclear.(19) What is more, this distinction has not been respected by the IRS in guidance on foreign LLCs, most likely because the IRS has relied upon the "lack of separate interests" theory.

b. Lack of Separate Interests. Where the entity is wholly owned by related parties, special issues concerning the absence or presence of continuity of life arises. Until recently, the IRS clung to the theory that the apparent absence of continuity of life stemming from unanimous reconstitution agreements may be overcome if all the members are under common control. Under this "lack of separate interests" theory,(20) the related entities are presumed 'not to act independently to ensure their individual self interests.(21)

Rev. Rul. 77-214, 2977-1 C.B. 408, addresses a situation where a German GmbH was formed by two U.S. subsidiaries that were wholly owned by a U.S. parent corporation. The ruling held that where none of the interests in the GmbH was held by persons with independent self interests, the GmbH possessed the corporate characteristics of continuity of life and free transferability of interests. The ruling reached this conclusion even though the GmbH's memorandum of association stated that the occurrence of certain dissolution events would terminate the entity's existence and even though transfers of its interests could not occur without the approval of the unitholders.

In Rev. Rul. 93-4, 2993-3 I.R.B. 5, the IRS recently reversed its position on continuity of life in commonly controlled situations. The IRS now states that if the memorandum of association of a GmbH provides that the entity shall be dissolved by the death, insanity, or bankruptcy of any of the unitholders, then the entity lacks continuity of life, whether or not the units are held by persons with independent self interests or are under common control. The ruling reasons that the presence or absence of separate interests is irrelevant in determining whether an entity possesses continuity of life if, upon the occurrence of a dissolution event, the entity will terminate "without further action."(22)

c. Ministerial Act. The IRS maintains that continuity of life is absent only if no further act on the part of taxpayers is required for dissolution. Since 1988, however, the IRS has ruled that certain ministerial acts will be ignored for these purposes. In Rev. Rul. 88-76, 1988-2 C.B. 360, a Wyoming LLC was classified as a partnership even though a notice must be sent to the Secretary of State upon the occurrence of an event of dissolution. The ruling states that under Wyoming law the notice has no effect on the dissolution, but rather merely informs the State of the fact.

A closer reading of the Wyoming statute, however, calls this into question. The portion of the Wyoming statute entitled "Dissolution" provides that "[a]s soon as possible following the occurrence of any of the [dissolution] events. .. the limited liability company shall execute a statement of intent to dissolve in such form as shall be prescribed by the secretary of state."(23) Further, it provides that duplicate originals of intent to dissolve shall be delivered to the Secretary of State.(24) In other words, the notice appears to be necessary for the dissolution to be effective.

d. U.K. Limited Liability Companies. The IRS recently refused to rule privately on a United Kingdom LLC's classification for U.S. purposes because the statute requires a meeting and member vote upon the occurrence of an event of dissolution for dissolution to occur. Potentially, this causes the LLC to possess continuity of life.(25)

Under section 84(1)(a) of the Insolvency Act of 1986,(26) a U.K. LLC organized under the Companies Act may be wound up voluntarily when:

the period (if any) fixed for the duration of the company by the articles expires, or the event (if any) occurs, on the occurrence of which the articles provide that the company is to be dissolved, and the company in general meeting has passed a resolution requiring it to be wound up voluntarily.

Thus, the company can be dissolved under this section only if the period fixed for the duration of the company has expired (i.e., an event of dissolution has taken place and an ordinary resolution in general meeting has been passed by the members). In other words, some person must act.

A U.K. LLC's articles can determine a fixed period and impose obligations on the board of directors to call the necessary general meeting, to propose the necessary resolutions and to require the members to vote in favor of the resolution. Under U.K. law, an LLC's memorandum and articles constitute a contract between the company and its members. The contract is enforceable among the members inter se and against the company. The articles also bind later members in the same way as shareholders holding the unit at the time the articles are drawn up.(27)

Should the board of directors fail to call the necessary general meeting to dissolve the LLC, the questions arises who will enforce the memorandum and petition for the winding up so that a general meeting is called and a resolution is passed to wind up the company under section 84(1)(a) of the Insolvency Act. There are four alternative courses of action available. The most obvious route is for an individual member to apply to the court for an order that the board of directors call the necessary general meeting and begin the procedure. Since the memorandum and articles of association constitute a contract and every member has an individual right to have the terms of the contract enforced, a member could seek orders for specific performance or mandatory injunctions against the company to carry out the necessary procedures, and against the other members to vote for winding Up.(28)

Alternatively, section 459 of the Companies Act provides that a member of a company may apply to the court for an order that the company's affairs are being or have been conducted in a manner that is "unfairly prejudicial" to the interests of its members generally or of some part of its members. This section would enable a member to petition to enforce the conditions in the memorandum-(29)

A member could also proceed under section 122(1)(g) of the Insolvency Act, which permits the court to order that a company be wound up where it is "just and equitable" to do so, it being just and equitable to wind up a company at the end of its fixed term. The members, including a minority member, or the company may bring such a petition.

Finally, there is a possibility that the company could be organized so that a Protector would examine the exercise of the directors' duties, including adherence to the memorandum and articles. The memorandum could contain a condition stating how the Protector will be appointed and the powers that he will exercise, possibly including an obligation to ensure that the directors begin the process of winding up. To ensure that the company does not continue without passing the necessary resolution after the specified termination date, the directors could be required to give a longer than normal period of notice for calling the general meeting, say three months, so that any member or Protector will have time to intervene.(30)

In attempting to anticipate and meet objectives from the IRS, it may be possible to overcome the difficulties suggested by taking one of the following courses of action:

* All interests could be registered in the name of the Protector as nominee for the members. The company is not entitled to look behind the register and can act only on the votes, etc., of the registered holders of the shares (i.e., no need for a proxy as such but this route would require notice to mandate dividends or notices of meetings to the real beneficial owners);

* Alternatively, there could be a special class of interests to vote only on the winding up and other interests with all rights except dissolution rights. Under section 17 of the Companies Act, the special rights of a class of members may not be altered by special resolution without the Protector's consent; or

* A contract between a Protector and the members could provide binding arrangements authorizing the Protector to wind up the company upon an event of dissolution.

Where foreign LLCs are concerned, the problem is that the IRS may be looking for something that does not exist within the meaning of local law. Under English law, there is not a procedure for the automatic termination or dissolution of a company by operation of law without the intervention of some person or agency, except perhaps in the case of a company incorporated by private Act of Parliament, an extremely rare occurrence. All procedures for liquidation of a company require the intervention of some person.(31) Moreover, some form of process is required to dissolve a company in order to deal with its assets and liabilities; otherwise, the company's property passes to the Crown as bona vacantia and not to the members.

It is possible to establish a situation where any member can enforce the liquidation of the company, but there is very little (if anything) that can be done to ensure that a person will act to enforce the liquidation. In the absence of a person taking the appropriate steps, it seems that the LLC will continue in existence.(32)

If one concludes that the Wyoming statute requires that a notice be sent before dissolution is effective, but the notice is a ministerial act to be ignored (as is stated by the revenue ruling), it is difficult to conclude that the U.K. Act's requirement that a meeting be held at which all members (or their Protectors), are deemed to vote for dissolution is somehow more substantive than a required notice of dissolution, thus removing it from the ministerial act safe harbor. The only discernable difference is that it takes more effort to hold a meeting at which all members are deemed to vote for dissolution (even absent members) than to send a notice. But that seems a thin reed upon which to place tax policy in this area. The result is the same in both instances; upon the occurrence of a dissolution event, the entity will be dissolved.33

A workable rule in this area would place its emphasis on the lack of discretion on the members' part to dissolve the entity upon the occurrence of a dissolution event. In that case, entities organized under statutes that allow no discretion (as can be structured under the U.K. act) would lack continuity of life even though pro forma actions must take place. This is certainly within the scope of the ministerial act exception as defined in Rev. Rul. 88-76, which seems to tolerate some discretion on the members' part, yet requires only the insignificant act of mailing the notice.

Conclusion

Although the IRS appears to be moving toward answers to the classification of domestic LLCs through the issuance of rulings, some questionable polices remain, such as the requirement that LLCs provide for unanimous consent to continue after the occurrence of a dissolution event to fail the continuity of life test. Far more troubling is the IRS's predilection toward requiring "no further action" to take place upon an event of dissolution.

In the foreign context, many statutes are not easily compartmentalized into U.S. entity classification pigeon holes and do not readily meet such rigid requirements. A major hurdle often exists under foreign LLC statutes that require a meeting or notification to the State before dissolution. Such a rigid rule cannot be justified in the foreign or domestic context. The ministerial act exception found in Rev. Rul. 88-76 should allow a certain amount of activities to take place to cause dissolution without characterizing the entity as possessing continuity of life.

NOTES:

1 For a discussion of tax issues affecting limited liability companies, see Crnkovich, Schmalz, & Starr, Limited Liability Companies: A Tax Perspective, 9 TAx MANAGEMENT REAL ESTATE JOURNAL 111-20 (June 2, 1993).

2 They are Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois (effective 1994), Indiana, Iowa, Kansas, Louisiana, Maryland, Michigan, Minnesota, Mississippi (qualifying foreign LLCs), Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, Texas, Utah, Virginia, West Virginia, and Wyoming.

3 California, Hawaii, Maine, Massachusetts, New York, Ohio, Pennsylvania, South Carolina, Tennessee, and Washington. The District of Columbia has also recently introduced legislation.

4 Alaska, Kentucky, Mississippi, Vermont, and Wisconsin do not have LLC legislation pending.

5 Wyoming (Rev. Rul. 88-76, 1988-2 C.B. 360), Virginia (Rev. Rul. 93-5, 1993-3 I.R.B. 6), Colorado (Rev. Rul. 93-6, 1993-3 I.R.B. 8), Nevada (Rev. Rul. 93-30, 1993-16 I.R.B. 4), Delaware (Rev. Rul. 9338, 1993-21 I.R.B. 4), Illinois (Rev. Rul. 93-49, 1993-25 I.R.B. 11), and West Virginia (Rev. Rul. 93-50, 1993-25 I.R.B. 13).

6 Informally, a Treasury Department official has stated that this revenue procedure is in the works. Remarks of Jose Berra, Attorney-Advisor in the Treasury Department's Office of Tax Legislative Counsel, before New York State Bar Association Tax Section (July 25, 1993).

7 Other countries' statutes may have similar impediments. For example, the Mexican Sociedad de Responsabilidad Limitada (3. de R.L.) requires registration upon the occurrence of a dissolution event.

8 Treas. Reg. 301.7701-2(a)(3) also prescribes that a partnership possess the characteristics of having associates and an objective to carry on business for joint profit. Since associates and the business for profit objective are characteristics common to both corporations and partnerships, the focus is upon the four other characteristics.

9 Pursuant to Treas. Reg. 301.7701-1(c), local law is determinative whether the standard set by the Internal Revenue laws are met.

10 This may overstate the issue, however. Some limited liability entities (e.g., ones dedicated to professionals such as doctors or lawyers) protect the unitholder from liability other than that arising from professional realpractice. Thus, at least to some extent, they are not limited liability companies. Such considerations are beyond the scope of this article.

11 It is unclear whether managerial control by fewer than all of the members of an LLC will be fatal in all instances. Domestic limited partnerships do not necessarily possess centralized management, even though managerial duties are vested in the general partner. If the general partner has a significant partnership interest, centralized management may be lacking. See McgEE, NELSON & WHITMIRE, 1 FEDERAL TAXATION OF PARTNERSHIPS AND PARTNERS 3.0614][b1 (hereinafter referred to as "McgEE").

12 Treas. Reg. 301.7701-2(e)(1).

13 The substitute "partner" is treated as a partner for purposes of reporting partnership income and loss and participating in the business's successes and failures. Thus, limited transferability is of little penalty. Mcgee 3.0614][d].

14 T.D. 8475, 58 Fed. Reg. 28501 (May 14, 1993), amending Treas. Reg. 301.7701-2(b)(1).

15 Rev. Proc. 92-88, 1992-42 I.R.B. 39, provides that a limited partnership formed pursuant to a limited partnership act that corresponds to the Uniform Limited partnership Act will also be treated as lacking continuity of life.

16 The IRS has so ruled publicly in several instances: Wyoming, Rev. Rul. 88-76, 1988-2 C.B. 360; Virginia, Rev. Rul. 93-5, 1993-3 I.R.B. 8; Colorado, Rev. Rul. 93-6, 1993-3 I.R.B. 8; and Nevada, Rev. Rul. 93-30, 1993-16 I.R.B. 4.

17 Utah, Florida, Texas, and Delaware provide this flexibility. See Utah Code Ann. 48-2b-137; Fla. Star. Ann. 608.441(c); Tex. Rev. Civ. Star. Ann., Art. 1528n, 6.01; and Del. Code Ann. tit. 6, 18801.

18 The IRS has issued several private rulings adopting this approach. Letter Ruling Nos. 9030013, 9029019, 8937010 (Florida); Letter Ruling Nos. 9242025, 9218078, and 9210019 (Texas).

19 The IRS, however, has not rejected outright flexible reconstitution provisions, though the preamble to the recently promulgated regulations rejected suggestions that the regulations also apply to LLCs. The IRS argued that many concerns in this area have been addressed "to a significant degree" in previously published guidance or will be addressed in future guidance. The preamble then cites revenue rulings relating to Wyoming's, Virginia's, and Colorado's statutes, all of which require unanimous consent to continue.

20 MCA Inc. v. United States, 502 F. Supp. 838 (C.D. Cal. 1980), rev'd, 685 F.2d 1099 (9th Cir. 1982).

21 This theory also holds true for an analysis of the corporate characteristic of free transferability of interests. Many thorny questions arise from the IRS's treatment of "free transferability" in Rev. Rul. 93-4, though they are beyond the scope of this article.

22 The ruling lets stand Rev. Rul. 77-214, cautioning that free transferability of interests will be found where there is no impediment to transfer because of common control.

23 Wyo. Stat. 17-15-123.

24 Wyo. Stat. 17-15-124.

25 The IRS refused to rule on the basis of an on-going project examining this area. The private letter ruling request in question was filed by the author under U.K. Companies Act of 1985, Elizabeth II 1985 Chapter 6. Cf. Letter Ruling No. 9002056 (company formed pursuant to Companies Act to lack continuity of life and free transferability of interest is classified as a partnership). The IRS, however, has recently evidenced its willingness to rule on the generic question of classification of foreign LLCs, even though controlled by related parties. Rev. Proc. 93-44, 1993-34 I.R.B. 1, Rev. Proc. 93-45, 1993-34 I.R.B. 14.

26 Elizabeth II 1986 Chapter 45.

27 The contract formed under the articles however, can be amended. Section 14 of the Compames Act expressly provides that it is "subject to the provisions of this Act." These provisions include sections that permit alterations of the articles of association by special resolution. To protect against amendment, a condition could be included in the memorandum that the company shall have a fixed term, together with a procedure whereby all the members shall vote in favor of the winding up and a condition that these said conditions cannot be altered. Under section 17, any condition contained in a company's memorandum, which could lawfully have been contained in the articles instead of in the memorandum, cannot be altered by special resolution if the memorandum itself prohibits the alteration of the conditions.

28 This individual right is not affected by the principle of majority rule. Cf. Foss v. Harbottle, (1843) 2 Hare 461.

29 This section overrules the rule in Foss v. Harbottle, which states that if a wrong is done to a company, it is the company alone that can decide to sue and that decision shall be made by the majority.

30 Perhaps a fifth alternative is available. Members could give their proxy to vote for dissolution upon the occurrence of a dissolution suit to third party. Appointed proxies, however, are not compelled to exercise the authority conferred upon them unless there is a binding contract or some equitable obligation compelling them to do so. The statutory provisions relating to proxies are found in section 372 of the Companies Act. A proxy in English law is simply an agency or authority to the named person to exercise a vote in a particular way. A proxy may not vote on a show of hands at a general meeting, unless the articles otherwise provide. He may, however, always vote on a poll. In addition, as between a member and his proxy a revocation is always effective if notified to the proxy before he has voted. The proxy appointment is always ineffective if the member attends a members' meeting and votes. This agency may also terminate on the death, mental incapacity, bankruptcy or liquidation of the principal, i.e., the member- In certain cases a proxy, if made in the form of a power of attorney, may be irrevocable but those instances do not appear to be relevant. Powers of Attorney Act 1971, as amended. Alternatively, at common law an agency is irrevocable if coupled with an interest of the agent--but unlikely to apply since the proxy is unlikely to have a relevant interest.

31 For example, a company may be struck off the register for failure to deliver the annual returns required by the Companies Act. The Registrar of Companies, however, must take the initiative in deciding whether and when to strike off the company. Further, such a dissolved company can be returned to the Registrar of Companies, i.e., revived in certain circumstances

32 Even in the case of a U.K. partnership, there is no automatic dissolution. It is possible to enter into a partnership for a fixed term or for a fixed undertaking so that on the expiration of the term or the undertaking the partnership will be dissolved. The Partnership Act of 1890, however, contemplates that the partnership may continue to operate after the date fixed for its termination and provides the basis for which it is to continue. A continuance of the business by the partners without any settlement or liquidation of the partnership affairs is presumed to be a continuance of the partnership.'Basically, therefore, someone must take the initiative in bringing the original partnership to an end by seeking to enforce the contract between the partners, i.e., the partnership agreement.

33 In fact, under the U.K. statute, the result is clearer than under the Wyoming statute. Under the former statute, even if the events do not occur (i.e., a meeting is held at which all members vote for dissolution) they are deemed to occur or under one of the proposed solutions a Protector should act. On the other hand, under the Wyoming statute, one can argue that the notice must be sent before the dissolution is effective.