WHAT IS A LIMITED LIABILITY COMPANY?
LLC stands for Limited Liability Company. Forming an LLC is a simple and effective means of structuring your business to protect your personal assets in case your business is sued.
For most small businesses, a limited liability company offers the right mix of personal asset protection and simplicity. Unlike sole proprietorships and general partnerships, LLCs can protect your personal assets if your business is sued. Unlike corporations, LLCs are relatively easy to form and maintain, and are not subject to double taxation, meaning that the net profits (or losses) of the LLC flow through to
LLCs also offer the easiest way of choosing the S-Corp tax designation, because they are simpler to maintain than a standard C-Corp.
ADVANTAGES OF A LIMITED LIABILITY COMPANY
Personal Asset Protection
Provided there is no fraud or criminal behavior, the owners of an LLC are not personally responsible for the LLC’s debts or lawsuits.
Pass Through Taxation
Unlike other business structures, LLCs can choose among three different tax elections. By default, an LLC’s profits “pass-through” directly to its owners, who then report their share of the profits on their individual tax returns. Hence, an LLC’s profits are only taxed once. This is known as pass-through taxation.
Another popular “pass-through” option is to be taxed as an S-corporation, also known as an S-corp. Technically an S-corp is a tax designation, not its own type of business entity. LLCs can also choose to be taxed as a C-Corp, but such tax election for LLCs is not often used, absent exceptional circumstances.
In a traditional C-corporation, profits are subject to “double taxation”. This means profits are taxed at the corporate level before being distributed to owners and taxed again when owners report their share of profits on their individual tax returns.
In essence, the LLC offers the most flexibility with tax elections. LLCs can choose to be taxed as a “disregarded entity” if the LLC only has one owner or as a “partnership, if the LLC has more than one owner; as an S-Corp, or as a C-Corp.
Distributions and Allocations of Profits and Losses.
Unlike other entity structures, an LLC’s distributions to its owners and the allocations of its profits and losses to its owners can be different. In an S-Corp or C-Corp, distributions and allocations must always be the same. However, in an LLC taxed as a partnership, they can be different. For example, if you have two owners, one of whom funded the start-up, he or she could be given a higher percentage of distributions until the investment is repaid, yet both owners can share the allocations of profits and losses equally.
DISADVANTAGES OF AN LLC
Potential Taxation without Distributions
Because LLCs are pass-through entities, LLC owners are responsible for paying taxes on their share of LLC income, whether or not they are given a disbursement or distribution of the Company’s funds. All members must wait until the LLC sends out K-1 forms to complete their personal taxes. In addition, because VCs and angel investors dislike these aspects of the LLC, most investors will not fund LLCs, preferring instead the traditional C-Corp.
Single Member LLCs have Additional Risks in Certain States
In many states, a person’s interest in a limited liability company is considered personal property, just like stock in a corporation. This is particularly true for single owner limited liability companies. In a hypothetical scenario, if the owner of an LLC is personally sued (assume that the matter is unrelated to the business of the LLC, such as a car-accident) a judgment creditor could take the owner’s interest in his or her LLC as payment for the judgment.
Asset Protection Strategies
In most states, multi-owner LLCs are afforded personal creditor protection, which is called “charging order protection”. So, if an owner of multi-member LLC is personally sued, a judgement creditor cannot take his or her interest in the LLC but instead, would only be entitled to receive (all or a part of) that owner’s distributions from the LLCs. Other states, like Delaware, afford “charging order protection” even to single-owner LLCs.
Compensation to an LLC’s Owners
There is still some discord among tax and legal professionals as to whether or not the owner of an LLC can pay him or herself a traditional W-2 salary. Many tax professionals will advise that, unless the LLC is taxed as an S-Corp, the owner must pay him or herself in the form of distributions from the company; while other tax professionals may argue that, so long as an LLC’s owner is providing essential services to the LLC, he or she can draw a traditional W-2 salary. Because of the discord amongst professionals regarding owner compensation, consultation with both a lawyer and tax professional before choosing your entity type is always recommended.
A UNIQUE CREATION: THE SERIES LLC
A Series LLC is a unique, new type of LLC where a single “parent” LLC provides limited liability protection across a series of “child” businesses. Also, each “child” business is protected from the liabilities of the other businesses under the single Series LLC. Currently, you can only form a Series LLC in seventeen (17) states: Alabama, Delaware, Washington D.C., Illinois, Indiana, Iowa, Kansas, Minnesota, Missouri, Montana, Nevada, North Dakota, Oklahoma, Tennessee, Texas, Utah, and Wisconsin.
The LLC is a unique and flexible business entity that offers numerous benefits to its owners. The decision to form an LLC for your business is personal and based on a variety of facts. As such, you should consult with a trained business attorney prior to forming a limited liability company.
Contact us today to discuss choosing the best corporate entity for your business!
Disclaimer: DiSchino & Schamy is a boutique, Miami-based law firm which specializes in corporate, business and intellectual properties for businesses in the creative industries. However, this information is being provided for educational purposes only and does not constitute legal advice. Any reader of this article should consult with an attorney directly regarding its legal rights and obligations.