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Tax aspects of limited liability companies: is the LLC a state-of-the-art entity?

One of the most challenging decisions business enterprises, including CPA (Computer Press Association, Landing, NJ) An earlier membership organization founded in 1983 that promoted excellence in computer journalism. Its annual awards honored outstanding examples in print, broadcast and electronic media. The CPA disbanded in 2000.  firms, face is selecting a form of organization. Among the available options, the limited liability company (LLC (Logical Link Control) See "LANs" under data link protocol.

LLC - Logical Link Control
) is not new but certainly is gaining favor as a way of doing business. Unlike C corporation owners, LLC owners (called members) avoid double taxation (LLCs are taxed as partnerships) while at the same time enjoying the same limited liability as C and S corporation owners.

To many, LLCs may sound no better than or different from S corporations or limited partnerships. But the S corporation limits on formation and continued operation do not apply to LLCs, and the problems of having a corporate general partner in a limited partnership are avoided since all members enjoy limited liability. Limited partner ownership and participation restrictions are irrelevant to LLCs, which offer more favorable fa·vor·a·ble  
adj.
1. Advantageous; helpful: favorable winds.

2. Encouraging; propitious: a favorable diagnosis.

3.
 tax attributes than limited partnerships and avoid the restrictions of S corporations.

If LLCs are potentially so beneficial from both tax and liability viewpoints, practitioners may wonder why they are relatively unused. This article examines that question as well as others about LLC formation and operation; a detailed comparison of LLCs with limited partnerships and S corporations and some unresolved Not completed; not finished; not linked together. See resolve.  tax and nontax issues also are discussed. (For information on LLCs' applicability to CPA firms, see the sidebar (1) A Windows Vista desktop panel that holds mini applications (gadgets) such as a calendar, calculator, stock ticker and Vonage phone dialer. It is the Windows counterpart to the Dashboard in the Mac. See Windows Vista and gadget.  on page 51. )

LLCs AND THE IRS--PAST AND PRESENT

LLC legislation was introduced in Alaska in 1975 and 1976, but neither attempt passed. Wyoming passed the first LLC statute in 1977. Florida passed its statute five years later; Kansas and Colorado, in 1990; and Utah and Virginia, in 1991. Today, a total of 16 states have approved LLCs, and legislation has been introduced in 8 others. (Georgia and Indiana allow only foreign LLCs to conduct business in the state, subject to registration requirements.) The exhibit on page 52 shows states' LLC status.

The LLC legislation gap from 1982 to 1990 can be attributed to the Internal Revenue Service's failure to decide how LLCs would be classified. Under Treasury regulations sections 301.7701-2 and 301.7701-3, the issue was whether LLCs should be taxed as partnerships or given association status, forcing taxation as regular corporations. Classification remained a problem until revenue ruling 88-76 determined what criteria would be used to classify an LLC.

Morrissey v. Commissioner [296 U.S. 344 (1935)] provided perhaps the bestknown classification test for business organizations. The U.S. Supreme Court identified six long-used criteria to determine corporate resemblance:

* Associates (beneficiaries, partners or shareholders).

* An objective to carry on a business and divide its gains.

* Continuity of life.

* Centralized cen·tral·ize  
v. cen·tral·ized, cen·tral·iz·ing, cen·tral·iz·es

v.tr.
1. To draw into or toward a center; consolidate.

2.
 management.

* Limited liability.

* Free transferability of interest.

The Court was careful to state these not as requirements but, rather, as factors that make an entity resemble a corporation. In 1953, the IRS An abbreviation for the Internal Revenue Service, a federal agency charged with the responsibility of administering and enforcing internal revenue laws. .required only two criteria, continuity of hfe and centralized management, in deciding to tax an entity as a corporation or as an association. In 1960, Treasury regulations section 301.7701-2 adopted the six criteria used in Morrissey. Since the first two characteristics on the list above are common to most business organizations, the last four became the focus of the classification test. Presence of more than two forced taxation as a corporation.

As tax-shelter limited partnerships became popular, the government lost two important decisions--Zuckman v. United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area.  [524 F.2d 729 (Ct. C1. 1975)] and Larson v. United States [66 T.C. 159 (1976)]. The government failed in its attempts to classify two limited partnerships as associations and thus tax them as corporations. Larson became important because the Tax Court required equal weight to be applied to each of the four items not common to both types of organization. The IRS wanted to add to the list or place emphasis on limited liability. The IRS acquiesced to the Larson case in 1979.

In 1980, proposed regulations (not generally directed toward general and limited partnerships) were issued saying an organization would be classified as a corporation if no LLC member was personally liable for the organization's debts. These proposed regulations came after two IRS attempts to find other ways to force LLCs into corporate status. Effective dates for these regulations were changed five times before they were withdrawn in 1982.

In 1982, the IRS announced it would study the classification rules, giving extra attention to the limited liability issue. Two LLC letter rulings were issued. In LTR LTR - Langage Temps-Réel.

(French for "real-time language") A French predecessor to Ada, LTR is Modula-like with a set of special-purpose real-time constructs based on an event model. It was mentioned in the reference below.

["An Overview of Ada", J.G.P.
 8106082, an LLC was treated as a partnership. In LTR 8304138, an LLC was treated as a corporation. The latter had three of the noted four corporate characteristics. After this ruling, the IRS said advanced LLC classification rulings would be delayed until its study was completed. This position continued until IRS announcement 88-118 said the study was complete. Revenue ruling 8876 followed, holding a Wyoming LLC would be taxed as a partnership. In LTR 8937010, the IRS gave partnership treatment to a Florida LLC. Other states with LLC statutes should have letter ruling requests answered soon.

FORMING AND OPERATING AN LLC

LLCs may be formed for any lawful Licit; legally warranted or authorized.

The terms lawful and legal differ in that the former contemplates the substance of law, whereas the latter alludes to the form of law. A lawful act is authorized, sanctioned, or not forbidden by law.
 purpose except banking or insurance. Costs for LLC formation usually range from $1,000 to $5,000, including attorney fees and filing fees. States with LLC statutes tend to model the statutes on their existing Uniform Limited Partnership Act and the 1977 Wyoming LLC statute. Florida's act also was influenced by a similar organization called the limitada, popular in Central and South America South America, fourth largest continent (1991 est. pop. 299,150,000), c.6,880,000 sq mi (17,819,000 sq km), the southern of the two continents of the Western Hemisphere. .

LLC acts tend to make clear the entity resembles a partnership, but an LLC is a legal entity distinct from its members, a fact that distinguishes it from a partnership. Corporate rights seemingly are given to LLCs (the rights to sue, be sued, sell, convey, etc.). Two or more members must form an LLC and these members may be virtually any legal conception (individuals, partnerships, S corporations, regular corporations, estates, trusts or another LLC).

An LLC's life may extend up to but not beyond 30 years. At the end of the 30*year period, the articles of organization, similar to articles of incorporation The document that must be filed with an appropriate government agency, commonly the office of the Secretary of State, if the owners of a business want it to be given legal recognition as a corporation.  for a C or S corporation and articles of partnership for a partnership, may be renewed by amendment or net assets Net assets

The difference between total assets on the one hand and current liabilities and noncapitalized long-term liabilities on the other hand.


net assets

See owners' equity.
 can be transferred to a sister LLC or partnership. In Florida, the company name must end with "limited company" or "L.C." Wyoming requires the company name end with "limited liability company."

The articles of organization usually must contain the entity's

* Name.

* Duration.

* Purpose

* Place of business and agent (registered in state).

* Initial contributions to capital (agreed value for noncash property, which cannot include services).

* Additional contributions to capital.

* Right and conditions necessary to admit new members.

* Potential continuation when membership is withdrawn.

* Management (all members, certain members or other managers).

* Other desired provisions.

If the articles are silent on management, all members are deemed to share votes according to according to
prep.
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

3.
 their capital accounts. If the articles vest management only in members, then they, not any managers, can bind the LLC to third parties. Managers not having the authority to bind the LLC may cause problems by restricting managers' actions.

Subordinate to the articles of organization are an LLC's regulations. Similar to a corporation's bylaws The rules and regulations enacted by an association or a corporation to provide a framework for its operation and management.

Bylaws may specify the qualifications, rights, and liabilities of membership, and the powers, duties, and grounds for the dissolution of an
 or a partnership's operating agreement An operating agreement is an agreement among limited liability company ("LLC") members governing the LLC's business, and Member's financial and management rights and duties. No state requires an LLC to have an Operating agreement. , the regulations may contain provisions for the LLC's operation and management. This embodies one of the advantages of being taxed as a partnership, the ability to specially allocate items of income, gain, loss, deduction and credit as long as the allocation has "substantial economic effect" under Internal Revenue Code The Internal Revenue Code is the body of law that codifies all federal tax laws, including income, estate, gift, excise, alcohol, tobacco, and employment taxes. These laws constitute title 26 of the U.S. Code (26 U.S.C.A. § 1 et seq.  section 704(b)(2) and Treasury regulations section 1.704-l(b)(2)(ii)(a). However, this can present a special problem at dissolution when flow-through losses have created a deficit in a member's capital account. Also, the regulations may have to contain a "minimum gain chargeback Chargeback

The charge a credit card merchant pays to a customer after the customer successfully disputes an item on his or her credit card statement.

Notes:
Customers dispute charges to their credit card usually when goods or services are not delivered within the
" provision under temporary regulation section 1.7041T(b)(4)(iv)(d) when special allocations of nonrecourse deductions are provided.

The premise of limited liability for LLC members may be breached when the articles of organization require additional capital contributions as certain events occur, when other states do not recognize the LLC member's limited liability or when an insolvent INSOLVENT. This word has several meanings. It signifies a person whose estate is not sufficient to pay his debts. Civ. Code of Louisiana, art. 1980.. A person is also said to be insolvent, who is under a present inability to answer, in the ordinary course of business, the responsibility  LLC makes distributions to a member. Any of these situations may require additional contributions by LLC members.

LLCs VS. OTHER ENTITIES

The LLC is not burdened by many of the requirements constraining con·strain  
tr.v. con·strained, con·strain·ing, con·strains
1. To compel by physical, moral, or circumstantial force; oblige: felt constrained to object. See Synonyms at force.

2.
 the S corporation, which can

* Have no more than 35 shareholders.

* Generally not own 80% or more of another corporation's stock.

* Have only certain types of shareholders.

* Have only one class of stock (therefore allowing disproportionate dis·pro·por·tion·ate  
adj.
Out of proportion, as in size, shape, or amount.



dispro·por
 distributions).

* Have no nonresident non·res·i·dent  
adj.
1. Not living in a particular place: nonresident students who commute to classes.

2.
 alien shareholders.

As rederally taxable partnerships, LLCs do not have to worry about the section 351 tax-free incorporation requirements and can take advantage of section 754 special basis adjustments for external sales of interests or certain distributions. LLCs' operating and liquidating distributions should be nontaxable. This is not true for liquidating, appreciated property and certain operating distributions in S corporations.

Unlike S corporation shareholders, LLC members can increase their bases for the amount of the entity's debt under IRC (Internet Relay Chat) Computer conferencing on the Internet. There are hundreds of IRC channels on numerous subjects that are hosted on IRC servers around the world. After joining a channel, your messages are broadcast to everyone listening to that channel.  section 752. Since all LLC debt is nonrecourse, unless a member is personally liable, the allocation is similar to a limited partner's share, under temporary regulation section 1.752-IT(e)(1). For nonrecourse debt A nonrecourse debt or non-recourse debt or nonrecourse loan is a secured loan (debt) that is secured by a pledge of collateral, typically real property, but for which the borrower is not personally liable. , LLC members get their portion of required "minimum gain chargebacks" under sections 704(b) and (c). The remaining nonrecourse debt is allocated as part of each member's profit-sharing ratio.

Limited partnerships formed with a corporate general partner face minimum net worth and profits allocation requirements for advanced rulings. In LTR 9052039, the IRS conceded con·cede  
v. con·ced·ed, con·ced·ing, con·cedes

v.tr.
1. To acknowledge, often reluctantly, as being true, just, or proper; admit. See Synonyms at acknowledge.

2.
 these requirements are not relevant to LLCs. Also, limited partners may be charged with centralized management of a limited partnership and risk reclassification Reclassification

The process of changing the class of mutual funds once certain requirements have been met. These requirements are generally placed on load mutual funds. Reclassification is not considered to be a taxable event.
 if the partnership owns substantially all partnership interests.

For purposes of requesting an advance IRS ruling, revenue procedure 89-12 requires the IRS not say the partnership lacks centralized management if limited partners own more than 80%. This should not be a problem for LLCs since members own 100% of the entity. Limited partners generally cannot be involved in day-to-day management of a limited partnership without losing limited liability and being treated as general partners. For an LLC, day-to-day management by its members generally is assumed. (In 1986, Florida revised and liberalized its Uniform Limited Partnership Act to allow this.)

OTHER PARTNERSHIP CLASSIFICATION ISSUES

No discussion of pass-through entities would be complete without some reflection of IRC section 465's at-risk rules at-risk rule

A law that limits tax write-offs to the amount of money directly invested (and thus, at risk) in an asset. The purpose of an at-risk rule is to prohibit investors from deriving tax benefits that exceed the amount of money actually invested.
 and the passive loss rules of section 469.

Closely held corporations Noun 1. closely held corporation - stock is publicly traded but most is held by a few shareholders who have no plans to sell
corp, corporation - a business firm whose articles of incorporation have been approved in some state
, individuals, sole proprietors and pass-through entity members all are subject to the at-risk rules. Generally, partners may deduct de·duct  
v. de·duct·ed, de·duct·ing, de·ducts

v.tr.
1. To take away (a quantity) from another; subtract.

2. To derive by deduction; deduce.

v.intr.
 losses only to the extent they have a risk in connection with the activity. Nonrecourse liabilities Nonrecourse Liability is any liability of the Company treated as a “nonrecourse liability” under United States Treasury Regulation Section 1.704-2(b)(3).  added in the general basis calculation (under section 752) must be subtracted to atfive at the at-risk basis. Since all debts are nonrecourse, except those a member has assumed primary liability for, subtraction subtraction, fundamental operation of arithmetic; the inverse of addition. If a and b are real numbers (see number), then the number ab is that number (called the difference) which when added to b (the subtractor) equals  from general basis may be a significant consideration. (Merely guaranteeing a loan will not change it from nonrecourse status.)

Recourse debt usually can be added to the general partner's basis and at-risk basis, but LLCs do not have general partners. So, even though the debt may be state law recourse, it is nonrecourse for federal income tax purposes and therefore does not increase LLC members' at-risk basis. A major exception to the above rules is the real estate exception under IRC section 465(b)(6). Qualified nonrecourse financing secured by real property (except for mineral property) used in a real estate holding activity (for example, rental real estate) increases the members' at-risk basis. In real estate financing operations, state law recourse and all nonrecourse financing should be added to LLC members' at-risk basis. Losses suspended as a result of the at-risk rules may be used to offset gain recognized from the sale or exchange of the investors' interest according to proposed regulations section 1.465-66.

Section 469's passive activity loss restrictions provide another hurdle for deducting LLC flow-through losses. Any LLC member who is an individual, a closely held A phrase used to describe the ownership, management, and operation of a corporation by a small group of people.

In a closely held corporation, the same people often act as shareholders, directors, and officers, and no outside investors exist.
 C corporation or a personal service corporation should be subject to the passive activity rules. Losses from passive activities are deductible That which may be taken away or subtracted. In taxation, an item that may be subtracted from gross income or adjusted gross income in determining taxable income (e.g., interest expenses, charitable contributions, certain taxes).  only to the extent the taxpayer has passive income. A passive activity is defined as any rental activity, trade or business in which the taxpayer does not materially participate. Material participation may depend on whether the member is treated as a limited or general partner.

The section 469 temporary regulations appear to suggest all LLC members are in fact limited partners because of their limited liability under state law. If this is true, the greater-than-500-hour-per-year requirement for participating in the business or activity would have to be met to participate materially. But revenue procedure 8912 defines "general partners" as members of the organization with significant management authority relative to other members (with respect to organizations not designated as partnerships under state law). If this definition applies for material participation, all LLC members are general partners subject to section 469's broader material participation requirements. This result seems more consistent with the intent of the temporary regulations.

Practitioners should remember significant participation activity classification (between 100 and 500 hours of participation) generally makes LLCs unattractive for loss-generating activities in which members will participate within this range of hours. Members who are managers and have significant authority relative to other members may be treated as general partners.

OTHER LLC CONCERNS

Classification issues regarding continuity of life, free transferability of interests and centralization cen·tral·ize  
v. cen·tral·ized, cen·tral·iz·ing, cen·tral·iz·es

v.tr.
1. To draw into or toward a center; consolidate.

2.
 of management still may present some pitfalls for an LLC. If less than a majority of members can vote to continue the LLC upon a member's withdrawal, or if the articles of organization provide an advance agreement to continue the business, the IRS may consider this a corporate characteristic of continuity of lffe.

As long as all members manage the LLC, centralization of management should not be an issue. Sometimes this may not be possible or reasonable. Extreme care should be taken the IRS does not assert centralization of management. Free transferability of interests generally is avoided by the LLC statute requiring unanimous written consent of all members before a new LLC member may be admitted. Without this approval, a new member may participate only in profits, not in management. If LLC members are related parties, the IRS could try to use the "no separate interests" theory to reclassify Verb 1. reclassify - classify anew, change the previous classification; "The zoologists had to reclassify the mollusks after they found new species"
class, classify, sort out, assort, sort, separate - arrange or order by classes or categories; "How would you
 the LLC as an association.

A VEHICLE FOR THE FUTURE

Today, the LLC's greatest weakness may be its status in states without LLC legislation, which may not follow LLC members' limited liability status. Some states may not recognize the LLC statute from the state where the business is organized. If this occurs, members may be subject to liability beyond the entity's net worth. This is changing almost daily, however, with many states currently listing LLC statutes as pending and many others studying the possibility of adopting them. The IRS seems comfortable with the rollover A graphic element in an application or on a Web page that changes its color or shape when the pointer is moved (rolled) over it. See JavaScript rollover. See also n-key rollover.  of partnerships into LLCs; limited partnerships and general partnerships have been given the green light to convert to LLCs without treatment as a terminating event.

General and tax case law for LLCs does not really exist, making a venture into this uncharted territory
For the term dealing with television series Farscape, see Uncharted Territories (Farscape)
Uncharted Territory is a science fiction novella by Connie Willis.
 still quite risky. As with all the organizational forms, however, LLCs are favorable for some ventures and not for others. Time and general acceptance will cure the LLC's youthfulness.
COPYRIGHT 1992 American Institute of CPA's
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1992, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:includes related article on accounting firms organizing as limited liability companies
Author:Price, Charles E.
Publication:Journal of Accountancy
Date:Sep 1, 1992
Words:2548
Previous Article:Responsibility for withheld taxes.
Next Article:When a client is a liability.
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