Limited Liability Company (LLC)

FAQs

Can one person operate as an LLC?

Yes. In the early days of LLCs, they were taxed as partnerships and a minimum of two people were required. When the IRS adopted regulations allowing greater flexibility for LLC tax treatment, single member LLCs were permitted and all states now allow them.

Does an LLC provide better limited liability protection than a corporation?

The limited liability protection is essentially identical. In fact, many state laws simple say provide that the liability of members for obligations of an LLC is the same as for shareholders in a corporation. There are circumstances in which both shareholders and members may be held personally liable for the obligations of a corporation or LLC, but these are not common.

What is the difference between an LLC and an S Corporation?

A corporation structure consists of shareholders, directors, and officers. State laws have extensive provisions regulating the rights and limitations of each position in a corporation. An LLC has less statutory regulation, more flexibility in choosing management by members or managers, and more flexibility to defining the role of the parties through a written operating agreement. An LLC has fewer restrictions than an S Corporation for pass-through tax treatment.  There are restrictions on the type and number of shareholders that are permitted in an S Corporation that are not imposed on the member-owners in an LLC. Corporations must hold annual meetings of shareholders and follow certain other record keeping requirements not legally required of an LLC.

What is the difference between an LLC and an LLP?

An LLP, or Limited Liability Partnership, is a special type entity that is allowed for only certain types of professionals. These typically include attorneys, accountants, architects, and a few other professions depending on the particular state laws or licensing board regulations. The licensees form an LLP for additional liability protection that would not exist in a partnership where all partners have personal liability for the partnership’s obligations. In an LLP, a partner is not personally liable for the obligations of the LLP unless his conduct created or contributed to the liability.

What is the difference between an LLC and a PLLC?

An LLC is an accepted business form in every state and any type of business is usually allowed to operate as an LLC entity. A PLLC, or Professional Limited Liability Company, is an entity type reserved for certain licensed professionals. Only about 30 states authorize the formation of a PLLC and about 11 of those not allowing a PLLC will allow licensed professionals to operate through a regular LLC.

Is an LLC required to pay tax on its profits?

Unless an LLC chooses to be taxed as a C Corporation, it will be a pass-through tax entity. All profits and losses will be reported by the members on their personal tax returns and they’ll pay income taxes on their share at their individual income tax rate. The LLC does not pay tax at the federal level. At the state level, depending on the state, an LLC may have to pay a franchise tax (usually a privilege tax not based on income or profits) or a gross receipts tax that is based on the LLC income or assets.

Do I have to hold meetings or keep minutes in an LLC?

State laws do not require an LLC to hold annual meetings of members or document meetings in written minutes like a corporation. This is often touted as a significant advantage of the LLC over corporations. However, in a small business corporation, meetings are not required because all actions may be approved by written consent minutes signed by shareholders or directors without any meeting. Also, the types of events or activities for which minutes should be prepared are often greatly misunderstood as being far more inclusive than really necessary.  Lastly, while state laws don’t require LLCs to keep minutes, this has no bearing on the IRS where minutes may be an aid in the event the LLC is audited.

Why should I have an operating agreement?

When the states enacted statutes enabling the formation of LLCs, they placed the main responsibility on the LLC members to adopt their own governing document to specify how the LLC would be managed and operated. State LLC Acts are primarily “default” provisions that provide a safety net of sorts with only essential provisions to protect certain rights of members. They do not cover many important topics that members would request in an operating agreement and they often have consequences that the members would not choose in their own customized operating agreement.
 
A well-prepared, customized operating agreement, like a partnership agreement, will reflect the exact relationship that the members desire for their business, defining their respective duties, responsibilities, rights, powers, profit and loss allocations, and requirements and restrictions on transferring ownership interests.