Management / Ownership / Registered Agent FAQ

We have owned our business since 2004 and are an LLC owned by husband and wife. I am the majority owner (75%) and my wife has 25% ownership interest. We currently file with one joint personal return and one for the LLC taxed as a partnership. We have not filed for this year but want to change our filing status to be a disregarded entity. Can I elect a disregarded entity and file only one return? The LLC was formed in Delaware and we are residents of Delaware and the business is located in Massachusetts. If so, is there anything special I need to do given that we filed separate business and personal returns previously?

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Answer

Use IRS form 8832, Entity Classification Election, to elect to have your LLC taxed as a disregarded entity (the only limited liability companies eligible for such treatment are single-member LLCs and LLCs where the only two members are husband and wife):

http://www.irs.gov/pub/irs-pdf/f8832.pdf

An LLC with at least two members will generally treated as a partnership by default unless Form 8832 is filed with the IRS and elects to be treated as a corporation. Also, a single-member LLC is automatically a disregarded business entity taxed as a sole proprietorship unless Form 8832 is filed and the corporation status is elected.

Under IRS rules, you have to file the Form 8832 no later than 75 days after the date you want the new classification to take effect.

In your situation, it’s too late to elect disregarded entity status for last year’s return. However, you can file your Form 8832 to elect disregarded entity status going forward. Attach a copy of your Form 8832 to your partnership federal tax return when you file it.

QUESTION
Is there any reason to continue to do the separate returns? Is there any other reason to do it besides the obvious administrative benefits?

Answer

If you are a married couple and file joint personal tax returns, I can’t think of any reason why your tax situation would change going from partnership taxation (where you and your spouse are the only members of the LLC) to disregarded entity status.

So yes, the advantage of the disregarded entity status is the administrative benefits.

The only advantage to keeping it separate, and this is an “advanced” topic, is that as a disregarded entity, your income and expense statements are on your Schedule C, as opposed to a separate form 1065. Now, there are tax advisors who speculate that you are less likely to be audited if you file as a partnership using form 1065 rather than as a disregarded entity using

Schedule C. The statistics do somewhat support that view.

One thing to keep in mind is whether the LLC is in a community property state. LLCs owned by a husband and wife in (AZ, CA, ID, LA, NV, NM, TX, WA, & WI) can treat their LLC as a disregarded entity for federal income tax purposes if: the LLC is wholly owned by the husband and wife as community property under state law and not taxed as a corporation. In this scenario the LLC is not eligible to be a qualified joint venture because the entity is organized under state law.  This often means that each spouse would file a joint tax return with a Schedule C. When filing in this way, the owner’s pay self-employment taxes which include social security and Medicare.

That said, even the “increased” chance of audit using a Schedule C is about 2% (meaning, you have a 2% chance of being audited in any particular year).
With proper records and receipts, an audit should be nothing to fear. Furthermore, many audits are conducted through the mail and do not involve an Internal Revenue Service agent physically rummaging through your desk drawers and files.

The administrative benefits of disregarded entity status accrue each year, while the chance of an audit is slim (you have a 98% chance each year of NOT being audited).

The choice is ultimately yours but you may want to engage a CPA to fully discuss the options.

Return to Ask A Question About Single Member LLCs.

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Can a Single Member LLC be owned by Husband and Wife in A Community Property State?

For tax purposes, can an LLC whose only members are husband and wife be treated as a single member LLC in a community property state (CA)?

Answer

For income tax purposes, a husband and wife LLC can be treated as a single member limited liability company. This includes the election as a disregarded entity.

Whether the limited liability company is formed in a community property state (AZ, CA, ID, LA, NV, NM, TX, WA, & WI) is not relevant for this purpose–LLCs in all states can elect single member LLC status if owned by a husband and wife who file their income taxes jointly as the entity can’t elect qualified joint venture treatment.

Of course, being in a community property state will obviously have an impact on the distribution of the LLC membership interests in the event of a dissolution of the marriage as the LLC is a marital asset.

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I already have an LLC that I am running from a home-based office, with myself listed as the registered agent at the same address. Can I start a second business as an LLC and run it from the same address and home office and list myself as the registered agent at my home address for the second LLC, in the same way, I did the first? Would this pose any problems?

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Answer

Yes you can:

1. Have the same person as the registered agent for many LLCs (and corporations, too).
2. Have many LLCs (or businesses for that matter) can share the same registered office.

One caveat is that if you want to keep the liability protection separate for these multiple businesses, be sure that you treat them as separate entities. That means that they each have their own bank accounts (obviously), if one entity owns a piece of equipment, the other entity doesn’t use it without paying a rental charge, don’t mix money between the two (don’t deposit a check made out to LLC A into LLC B’s bank account, for example).

Another approach that is available in some states, is to register as a Series LLC which lets you structure multiple businesses under one LLC umbrella. The Series LLC is like a holding company with individual LLCs underneath it.  It’s most commonly used for real estate, but can house individual businesses as well.

It is not uncommon at all for many different companies to all use the same address as their registered agent address.

One notorious example is 1209 North Orange Street in Delaware. According to a New York Times article, there are more than 285,000 (yes, more than one quarter million!) companies “headquartered” at the nondescript, one story office building.

  285,000+ corporations and LLCs are headquartered at this single location in Delaware.

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Can an llc be sold?

– Sam, Illinois

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Answer

Yes.

A limited liability company absolutely can be sold. A member can sell his or her membership interest, or, all the members can sell their interests to a single buyer, or all the members can agree to sell all the assets of the LLC to a buyer.

Some LLCs will place clauses in the Operating Agreement preventing LLC members from selling their interests to outsides without first offering existing members the opportunity to purchase. This is a relatively common provision, but it is not mandatory, and your LLC could permit free exchange of membership interests.

A “membership interest” is similar to the concept of “shares” in a corporation. If you own 40% of the membership interest in an LLC, it’s like owning 40% of the stock in a corporation (LLCs have many similar concepts as corporations, but different terminology).

These transfers of LLC interests involve contracts and paperwork, of course.

If you have a particularly complicated transaction, you ought to have a lawyer either provide legal advice or help with selling the LLC. However, providing your lawyer with a generic buy-sell agreement will make their job easier, faster and likely result in a lower legal bill (sometimes substantially lower).  The buyer and seller may also each want to engage a CPA to look at the tax consequences from the purchase.

With the sale of the LLC, there are several things needed but in particular, to the business entity, there are two to take care of. One, the new owner will need to get a new EIN as the ownership is changing. Secondly, a buy-sell agreement with the date of sale, purchase price, a list of assets included in the sale and the value of those assets is needed as there is a taxable event for both the buyer and seller to report to the IRS.

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When forming an LLC my home address was used as there was no office space as yet to list. Will this compromise the LLC and enable anyone to claim against the home address in case of loss?

Answer

The short answer is no.

You can use your home address for an LLC as the use of a home address alone as your registered agent address will not cause your corporate veil to be pierced.

Piercing the corporate veil is an extreme remedy, and it usually takes multiple factors–including fraud by the owners/officers of the entity–to cause a court to pierce the veil.

The biggest disadvantage to listing your home address is that you will now get a ton of junk mail to your home because your LLC filing is public knowledge and marketers can purchase a list of newly formed companies.

Every state has a website where any person can search the name of a corporation or limited liability company and see, at a minimum, the registered agent address. Some states further require annual filings listing the officers of a corporation or LLC, and that information is also public.

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But at A minimum, your registered agent address is always publicly visible. Furthermore, most states let anyone view the change history to an LLC’s registered or resident agent. If you want to keep your connection to an LLC private for some reason, then you should use an outside provider as your registered agent and not your home address.

Also, if your company is ever sued, the summons will be served at your home, which might cause embarrassment.

For example, I had a client who was sued in federal court by an out-of-state bank on a defaulted business loan, and the bank decided to have the US Marshall serve the summons instead of using a private process server. The client was obviously upset, scared and embarrassed as her neighbors saw federal agents in marked vehicles outside her home and in this world, people are likely to think she did something criminal rather than a mere lawsuit on a business loan.

While many businesses are operated out of the home and there isn’t a separate business address, it may make sense to use a registered agent service. These services provide a business mailing address. In some states, you can use a mailbox service, but a PO Box address is never allowed. Many states though require a physical address and/or registered office where there is a person who can sign for documents if they get served to the business. Be sure to check your states LLC rules and regulations.

If you initially started with your home address, you can always change your registered agent to one of the many registered agent services available in every state. They usually charge anywhere from $75-$200 per year, depending on the level of services provided and who you choose to use.

Some LLC formation services like ZenBusiness include a registered agent service when you register your LLC through them.

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My business is a single-member LLC – 100% ownership is mine. I would like to transfer complete ownership to someone else (relative). Can I just make a transfer document and do it or do I have to redraft the operating agreement?

What other requirements are there for transferring ownership of an LLC?

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Answer

To transfer ownership of the entire LLC, there are a few things you need to do:

1. Assign your interest in the Limited Liability Company to the buyer. This involves the transfer of ownership through the membership interests of the LLC. At a minimum, draft a resolution of the members of the LLC approving the sale of the interest.
2. If you have one, amend the Operating Agreement to add the buyer as a member and remove the seller as a member. Many states, such as Arizona, don’t require a written Operating Agreement, especially for single-member LLCs.
3. Each state has a process for updating the members of record. Some will have a form to file upon the date of the change of ownership, while other states update the names of the members on the annual report.
4. A buy-sell agreement will be needed that outlines transaction, along with a list and price of the assets that are being transferred, the sales price of the business and any other relevant details regarding the sale of the business. This information is needed for the IRS as there are tax implications for both the buyer and seller.
5. Last, with the change in ownership, a new EIN will be needed for the new owner.

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I started my LLC in 2018, and I got an EIN for single-member. Now I need to add my dad to the LLC. So, I am going to get a new EIN?

Do I need to file form 8832 to notify them of the change from proprietorship classification to partnership-classification.

Since, partnership-classification is the default for multi-member do I need to file this form or is getting a new EIN sufficient.

– Chirag, New Jersey

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Answer

You don’t need a new EIN (Employment Identification Number) when adding a new member to a single-member Limited Liability Company. This is unless you never got an EIN for your LLC and were using your Social Security Number.

Changing tax classifications does NOT need a new EIN.

You will have to change your tax classification (using Form 8832 as you mention in your question). This is a move from a single-member disregarded business entity to a multi-member LLC (partnership taxation).

Before you were likely taxed as a disregarded entity or sole proprietorship and now you will file IRS Form 1065, a partnership tax return. Each member (yourself and your dad in this instance) will receive a K-1 from the 1065 stating your share of profits or losses to report on your own 1040.

When adding a member to an LLC, be sure to document this in your written Operating Agreement. Not all states require an Operating Agreement, but some do. Additionally, some states that don’t require one for a single-member LLC will for a multiple-member LLC. At the very least, you should document the following in writing:

1. The consideration paid by the new member for admission to the LLC (e.g. money, services to be performed, contributions of equipment or real estate, etc.);
2. The amount of membership units being acquired (i.e. “shares” of the LLC);
3. The effective date of the transaction;
4. Voting rights of the new member. Are they proportional to the new member’s interest or is the new member passive with no voting rights?);
5. Whether existing members have a right of first refusal to buy the new member’s shares. If a member wishes to sell their membership units, what is the formula to calculate the price of those shares?

All the above and more are often found in the LLC Operating Agreement. A few other topics to consider include:
– How to divide membership units (shares) between you and the new member
– How to divide profits and losses
– Whether a member can sell his/her shares to an outsider. This can include offering the other members right of first refusal
– and many other topics.

After updating the Operating Agreement, verify if you need to file an amendment with the Articles of Organization. Some states require the filing of a form to amend the Articles of Organization, while others do not. This is usually handled through the Secretary of State. Some states handle adding new members by updating the annual report.

Logistics of Adding a New LLC Member

While a lawyer isn’t required to draft an Operating Agreement there may be issues not being addressed. For example, how many of the five issues listed above did you think about before I listed them for you? There are likely a few as this is a complex document.

So, it is a good idea to get some help with your Operating Agreement. Services like RocketLawyer have templates available to help get started.

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I am wanting to remove my wife as a member from the LLC. What needs to be done? We live in Texas.

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Our Response: Before going forward with removing a member, be sure there are no stipulations in your operating agreement that may require board action.  If there are no stipulations, you and your wife are the only members or there is no operating agreement, LLCs can easily remove members change management by making a record of the change internally and then update the records with the Secretary of State.

There are two items to complete with the Secretary of State.  First, LLC’s need to update their officer information each year on the Public Information Report which is filed with the Texas Comptroller of Public Accounts. This information is then sent to the SOS and the records are updated. Next, even though amendments are not required, it’s a good idea to file an amendment to update management information with the SOS, which the form is found here – https://www.sos.state.tx.us/corp/forms/424_boc.pdf.

Here is my case
I will be the only owner and employee of my LLC , LLC will be in Dallas,TX
It would be an IT Staffing company LLC address is going to be my apartment address in Dallas Texas.

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Question

1. What registered agent means ? What he do ?
2. Do i have to have one?
3. Can I be my registered agent
4  Do i need Operational agreement as i m the only member
5  If so where do i need to send it i mean what to do with that agreement
6. What is veil Piercing ? LLC owner have to worry about it ?
7. How difficult to form an LLC by my self . What an advantage to hire a lawyer or do it online with any other company like LZ

Thanks

– Kalia, Texas

Answer

1. A registered agent (aka resident agent) is the person assigned to receive service of process for your LLCs. A registered agent located in the state of Texas is required for every Texas LLC.

You can act as your own registered agent if you choose.

2. See above. Yes, your LLC is required to have a registered agent.

3. See above. You can act as your own registered agent. The list of registered agents is public information, and therefore you will get lots of junk mail after forming your LLC if you are your own registered agent.

4. Most states do not require a written Operating Agreement. If you fail to create an Operating Agreement, your LLC will be subject to the default laws under Texas’ LLC act.

It is a good idea to have an Operating Agreement, even for a single member LLC.

5. Operating Agreements are not filed with the State, but are instead private contracts governing the management and operation of your LLC.

6. Veil piercing is when a judge allows a creditor of your business to seek a judgment against your personal assets, on the basis that your LLC is actually no different from yourself. The legal term is that your LLC is an “alter ego” of the owner.

Factors for veil piercing include commingling of business and personal funds, fraud, zero capitalization of your LLC, ignoring LLC formalities, and fraud.

Every business potentially has to worry about veil piercing, not just LLCs. The important things to remember are that you should follow corporate formalities (which is relatively simple with an LLC compared to a c corporation–Legalzoom’s LLC formation service includes guides on maintaining your LLC legally), not commingle funds, and not commit fraud.

Be sure to sign all contracts on behalf of your LLC as “John Smith, Member of XYZ, LLC”, and not as “John Smith”.

7. Filling out an Articles of Organization form for Texas is not particularly difficult, depending on how familiar you are with completing government forms.

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I am planning to start a service business that I will operate independently. My wife will not formally participate in the business except as an informal adviser. I’m stuck on the question of whether to add her as a member or not, and if yes, at what capital contribution level.

Are there tax benefits and estate planning benefits (what happens to the LLC if I die) to adding her now as a member? Note, all of our personal funds are held jointly, so capital contribution I provide is really from both of us.

Thank you for any insight you can give.

Regards,
– Jim, Minnesota

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Answer

For a married couple filing joint tax returns, I don’t really see how adding your spouse as a member will cut your taxes.

I really am not knowledgeable enough on estate planning to tell you if there are estate planning benefits. What I remember from studying for the bar exam is about enough to be dangerous 🙂

In terms of what happens to your LLC interest when you die, it, like all other assets, passes into your estate to be distributed according to your will (if you have one), or according to the laws of the state where you resided at the time of your death.

This is called probate, and it involves the courts and, depending on your state, can be a 6-12 month process or longer if there is a will contest.

You should take a look at placing your LLC membership interest in a living trust so that your wife can take ownership of it in the event of your death without having to go through the probate process.

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My wife and I are considering starting a business in Arizona providing therapy services to children. We have chosen to form an LLC and are not sure whether to classify as multi-member or single member. We have read numerous letters and blogs indicating advantages and disadvantages for each and still remain undecided. What do you think is the best option for us?

– Ryan, Arizona

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Answer

The first question you need to answer is whether you both want to be owners of the LLC, or just one.

Obviously, a single member LLC is the way to go if just one of you wants to own the LLC.

If you both own the LLC, then it’s not really “single member” anymore. However, as a husband and wife as to sole owners, you can elect disregarded entity status and avoid having to file Form 1065.

Instead, all your profits and losses would be recorded on your Schedule C of your 1040 (the “normal” tax return you file each year).

As far as whether you should both own shares in the LLC…

There are probably family law (e.g. in the event of divorce) considerations to who owns shares in the LLC, though it gets very complicated, and I’m not familiar with Arizona family. My understanding is that many western states are community property, which is different from what we have here in Missouri. Therefore, any family law issues would have to be addressed by an Arizona attorney.

On a general note, in terms of asset protection (after incorporating), your best bets are to:

1. Have adequate insurance;

2. Don’t be negligent.

The perception in the media is that any idiot plaintiff’s lawyer with a copy machine can win multimillion dollar verdicts on nothing more than a trip and fall.

The reality is far different.

You are more likely to be impoverished in business through employee fraud/embezzlement, lawsuits by your partners/investors, or lawsuit with suppliers and customers than to be bankrupted by a slip and fall plaintiff.

So, while incorporation makes logical sense, it’s important to purchase quality liability insurance. Then when there is a lawsuit you can hand the whole matter over to the insurance company’s lawyers.

Particularly because your business is dealing with children, having adequate insurance (at least $500,000 – $1,000,000) in case a child is injured is essential. Any plaintiff’s lawyer will take the insurance money over having to chase you personally into bankruptcy.

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Can a non-us person be a member of an LLC?

– David, Florida

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Answer

Yes. Unlike S-corporations, LLCs can have non-US citizens as members. If you wish to have your LLC taxed as an S-corporation, then obviously, no non-US members are allowed (and the LLC must follow the other S-corporation requirements as well).

In fact, pretty much any entity can be a member of an LLC, including:

1. A US citizen.
2. Non-US citizen.
3. An LLC.
4. A corporation.
5. A trust.
6. A partnership.

Other Questions about who can be an LLC Member: Can a member be a foreign limited company?

I have formed a LLC company and I need to include a member’s name. Can this member a foreign limited company? –By Bernard, Columbia, Mo, USA)

Answer

Foreign LLCs can be members of another LLC. Unlike, for example, S-corporations, there are no restrictions on the type of entity the member of an LLC can be.

Any of the following can be a member of an LLC: individuals (both US citizen and non-US citizens), trusts, corporations, LLCs, partnerships, limited partnerships.

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Can a trust be the single member of an llc in Illinois? If so, what are the practical considerations, advantages and disadvantages?

– Mike, Illinois

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Answer

Yes.

Illinois permits single member LLCs, and a trust (including a living trust) can be that single member.

As far as the advantages and disadvantages, you’d probably need to speak with an attorney or CPA.

One possible advantage with the living trust is to keep your LLC out of probate in the event of the single member’s death, and instead have ownership transferred via the living trust. However, you’re going to need professional help with this more complex situation.

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Can an LLC pay its members an hourly wage, which is tied directly to the number of service hours contributed to the enterprise, and perhaps even to a percentage of the actual money brought in on a given money earning project? Can these hourly payments be considered “guaranteed payments,” in the same way that a flat salary paid to members would be?

Here’s the situation: my friends are starting an LLC to provide web design, programming, and multimedia services to business clients. One member is a designer, one is a multimedia specialist, the third a programmer. They anticipate that the amount of money they will bring in, and how much of that money is due to the contributions of any one of the three contributing members, will vary widely depending on the project. Some varying factors would include:

(1) The hourly rate charged to clients for design, multimedia, and programming components will depend on the complexity of the project. A different hourly rate would apply to each component. So for instance; a job may demand complex programming but easy multimedia, and so the programming rate would be set much higher than the multimedia rate.

(2) Also, there could be projects that demand, for example, many more hours of labor from the designer than of the multimedia specialist or programmer, and vice versa.

Basically, they are struggling with the issue of how to set up a compensation system that guarantees each member a fair return for their contributions — which may, depending on the jobs they get, end up being grossly disproportionate to other members’ contributions.

– Eliana, North Carolina

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Answer

You have a complicated setup here, but it is possible.

Guaranteed payments are the way in which LLC members are compensated for their labor contributed to the LLC.

I have seen LLC operating agreements where members agree on a set guaranteed payment for each member, with bonuses determined at the end of the year based on productivity of each member. This is common among professional practices (medical offices, law firms, etc.)

In a law firm, for example, each member/partner would take a year-end bonus based on some formula related to billable hours. In a medical practice, it could be based on revenue generated from patient billings minus the member’s proportionate share of expenses.

I would think a similar model could apply to web development.

While nearly any conceivable compensation arrangement can be written into your operating agreement, the important thing is that what is written is what each person had in mind.

Secondly, you’re going to want quality accounting software that lets all the members see exactly what their efforts earned and what expenses were associated with their earnings.

For example, you could have a business where one member brings in 50% of revenue, but uses 80% of expenses. He might claim 50% of profits, but the other members might object, pointing out that he generated more expenses than revenue, and therefore should be entitled to a smaller share.

You need to decide:

1. How revenue is counted.
2. How expense are allocated between the partners.
3. How to value “intangible” value added to the company.
4. When this performance based compensation is paid (at the end of each month, annual bonuses, etc.)

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Can a c-corporation be the sole member of an LLC and if so how report income/loss…..

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Answer

Yes, a Limited Liability Company can have a C-corporation as its member.

The LLC’s income would pass-through to the c-corporation. The c-corporation would report the profit/loss on its own tax return.

Remember that unlike LLCs, a c-corporation files its own federal tax return separate from its owner(s) in addition to a state return.

I would suggest speaking to a professional (attorney and accountant) when you start getting multiple entities involved and co-owning one another as specific language should be included in the Operating Agreement in order to protect the business owners.

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I have multiple rental properties I want to put on one insurance policy. Can I do that?

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Answer

Ask your insurance agent about this one. I have talked with a couple of insurance agents and they typically do not due to the complexities of pricing such a policy, but other brokers may have policies to insure multiple entities on a single policy.

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Can I use a P.O. box as the primary address for my LLC? I am looking to incorporate in Pennsylvania.

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Answer

Most states, including Pennsylvania, require a street address (not a PO Box) for the LLC’s registered agent / resident agent. There are services such as UPS Stores that give you a real street address, and you refer to your box # as “Suite 123”.

For all other purposes, a PO Box as your LLC’s business address is usually acceptable.

Business address and registered agent address are two different concepts. A business address is where your business is located, such as a storefront or office.

A registered agent address is typically either your business address, your attorney’s office, or a separate company that acts as your registered agent.

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I would like to set up an LLC where I also retain final decision making on all issues. Is this possible. If so, is it accomplished by designating myself as also the manager? Or do I simply set it up as a member run LLC but then clarify management issue in the operating agreement, or something else entirely?

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Answer

How the LLC is managed day to day is determined by the operating agreement.

If you don’t have an operating agreement, then your state LLC statute determines how your LLC is run.

Therefore, it is crucial that you have a written operating agreement specifying and detailing how management decisions are made. Mere designation as manager might not be sufficient.

The most comprehensive and safest solution would be to form your LLC and prepare a limited liability company operating agreement.

Answer the questions asked of you in drafting the operating agreement.

The next step is to take the operating agreement created for you to a local lawyer who specializes in small business transactional matters and have him/her review it and make any needed corrections.

This will be FAR less expensive than having an attorney draft your operating agreement from scratch.

You get the best of both worlds–cost effective legal work from a document processing company, combined with the security of knowing an actual human lawyer has reviewed the document.

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Would it be sufficient to write “capital contribution” or “start up” on the memo line of your check from your personal account in terms of documentation or should you draw up a contract in terms of start cost and ongoing company expenses until you make a profit?

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Answer

If this is a single member LLC, then you can probably get away with simply writing “capital contribution” on the check for startup money.

If you are a member of multi-member LLC, you need to have an operating agreement and make sure that it addresses what happens to your capital contribution to protect your rights vs. the rights of the other members in the LLC to a return of the capital contribution.

For example, say you make a $10,000 capital contribution to the LLC and you have 3 fellow members. You are all equal 25% owners.

Suppose the LLC makes a $20,000 profit in year 1.

How is that allocated?

Does each member get $5,000?

Do you get your $10,000 back first, and the remaining $10,000 is divided 4 ways? (eg. you get $12,500 and the other three each get $2,500).

Some other method?

In other words, while the memo line method would establish that the check to the company was a capital contribution (compared to, for example, payment for services or a loan to the company), it would not spell out the members’ rights to the capital contribution after the company earns profits and, one day, eventually dissolves.

How your capital contribution is treated is determined by your operating agreement.

If you don’t have a written operating agreement, and there are multiple members in your LLC….get one.

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I’m attempting to start up a coffeehouse and want to maintain control of my venture, but don’t have the necessary capital saved up to begin operations. To make it simple, let’s say I have $5K saved, but need $50K to start up. If I raise the needed funds from various investors, is there a way to maintain single ownership? By default, if someone is willing to invest $10K into my venture, doesn’t that give them majority ownership? — Seth,Nevada

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Response:
Not at all.

In fact, someone could lend you $10k and have zero ownership in the company–instead, they get a promissory note.

This is the essence of a loan.

Furthermore, ownership of the company is NOT necessarily proportional to capital invested. If these investors are passive investors, and you are actively running the business, it would make sense for you to have a greater ownership than just your proportion of capital.

I would first explore a setup where the investors are loaning you money, perhaps with a healthy interest rate and even a kicker based on profits.

There is no rule that says that you have to give up majority control in order to fund your business.

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If we are changing from a standard business to an LLC do we need to change title to the LLC on a vehicle that has been previously depreciated out?

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Answer

If you want the ownership of the vehicle changed from “a standard business” (I assume you mean a sole proprietorship or partnership), to your LLC, then you will need to change the title.

Right now, the vehicle title is probably in your personal name. Therefore, any liability associated with the vehicle (even if another person is driving it), is associated with you personally as the owner.

Because you want the vehicle’s liability to be contained within the new LLC, you will need to have it owned by the LLC. Which means, transferring the title.

Remember that the LLC is its own legal entity–like a person. If you want another person to own your vehicle, you need them to re-title it.

Same with your LLC.

In terms of the tax effects of re-titling, that’s to be discussed with a tax adviser. If it’s been fully depreciated, then there’s probably little impact (particularly if the vehicle has little or no market value).

As far as deducting on going vehicle expenses as business expenses, there are two method:

Method 1 is to keep track of all repairs, maintenance, gas, vehicle property taxes (if your state charges those), and depreciation on the vehicle and use that to calculate expenses.

Method 2 is to keep track of business mileage and multiply that by the IRS’ business mileage rate. For 2012, that number is 55.5 cents per mile.

You will also want the LLC to hold insurance for the vehicle.

Just as an aside, be sure you have adequate insurance for your vehicle, particularly under-insured motorist and un-insured motorist. With the economy bad, you wouldn’t believe how many uninsured people are driving. If one of them puts you in the hospital for a month, and you get a $100,000 medical bill and tens of thousands in lost income, you can recover from your own uninsured/underinsured policy.

I would recommend a minimum of 100/300 under and uninsured motorists coverage, with 250/500 being preferred. The difference in premiums is small compared to the risk.

The most likely way for a young or middle aged person to be disabled temporarily or permanently is through an auto accident. High UIM/UM insurance limits are critical to ensuring that an uninsured driver doesn’t ruin your financial health along with your physical health.

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What is the difference between a managing member and a manager in terms of
a) authority
b) taxation

What is the maximum number of managers/managing members can a LLC have?

Can the managing member/manager reside outside the US?

Thanks

Leena d.

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Answer

A managing member is a member of an LLC who is able to make decisions for the LLC–sign contracts, etc.

A manager of an LLC is a non-member who has been chosen by the members to operate the LLC. Sort of like a CEO for a corporation–the shareholders hire the CEO to operate the business day to day.

A manager who is not a member is simply an employee, and is taxed like an employee receiving a paycheck. The LLC takes a deduction for the expense of the manager’s salary.

A managing member, on the other hand, is an owner as well, and is taxed as a member of the LLC however the LLC has chosen to be taxed (as a partnership, as a disregarded entity or as a corporation).

Yes, LLCs can have members who reside outside of the US (unlike an s-corporation, which cannot), and there is no legal limit on the number of members (again, s-corporations have limits on the number of members).

There are practical limits to the number of members, however, and if you get too many members (in the several hundreds), you can run into SEC regulations regarding investments.

But if you’re talking about a couple dozen members, or even 100, there is not a problem.

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Do I need to file an operating agreement with the state? If you don’t have to file the operating agreement with the state, where should one keep it? In addition can you amend the articles of organization to add a founding member or is that what is covered in the operating agreement.

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Answer

You didn’t tell me your state, and some of the answers depend on what state you’re in.

Whether you need to file your operating agreement with the state depends on which state you live in.

When you use an LLC formation company, like LegalZoom, they will let you know during the formation process what filings are necessary.

If your state does not require filing of operating agreements, you should keep it where ever you store important documents (safe deposit box, a file cabinet at home, in a pile of papers on the kitchen table….just kidding about the last one). Your LLC’s operating agreement spells out the rights of the members in the LLC in case of a dispute among the members, and important asset provision vs. creditors of the LLC and/or the members. It’s important to have an operating agreement, and preferably in writing (even if your state does not require it).

Also, some states require amending articles of organization to add new members, but with most you simply update your operating agreement.

Furthermore, many states require LLCs to file annual reports, and one of the pieces of information on an annual report is to identify all of the members. Therefore, you will update the state on the number and identity of the members, though that does NOT necessarily mean that the state is provided a copy of your LLC’s operating agreement.

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Can you just pay a partner for expenses and not an actual compensation fee?
We have just started and have agreed that if we can withhold from paying ourselves for the rest of the year it would be a good way to get extra working capital for the business.

– Amie, Ohio

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Answer

There is no requirement under the LLC statutes that you pay out profits to the members. Members can (and often do in practice), work without compensation in the start-up years of a new business. Often times, the members will even lend money to the LLC to get it started if they don’t have access to outside investors.

Remember, however, that as the LLC earns profits, those profits will be reported on the members’ tax returns, and generate tax liability, so the LLC might want to distribute at least enough of the profits to the members so that they can pay their taxes.

In most cases, brand new businesses lose money during the first year or two. In that situation, those losses can be taken as tax deductions by each member on that member’s personal tax return.

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I have a question regarding Resident Agents and privacy.

I run a home based business and would like more privacy. If I were to hire a resident agent, do I use the resident agent address for other things, such as opening business bank accounts and applying for business credit cards or do I use my personal address? Or when I deal with customers or vendors that need to pay me and need my EIN number, am I supposed to use my resident agent address or my personal address?

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Answer

The Resident Agent is for official business such as notices from the state, IRS, and lawsuits. It is also the address that will be publicly accessible to anyone on the internet through your state’s official website (usually the Secretary of State and the Corporations Division).

A registered agent is not a mail forwarding service (though some providers bundle mail forwarding with registered agent services together for your convenience).

When it comes to dealing with customers, to best protect your privacy, I would use a post office box or a private mailbox and/or mail forwarding service.

So, you would have your business address as a PO Box (all your bank statements, bills, payments from customers would be directed there–if you get a lot of mail that requires a street address, look into private mailbox services that provide street addresses), and use a registered agent service for your registered agent.

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If forming an LLC in Nevada w/ husband & wife as members if we elect sub s – can IRS decide to treat as a single member LLC because we are married?

– Jerry, Georgia

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Answer

You can choose either method of taxation–partnership or disregarded entity.

Use IRS Form 8832 (opens to a PDF in a new window–turn off your pop-up blockers) to elect your tax classification for your limited liability company.

If you don’t elect a specific taxation method, the IRS can/will choose one for you. That’s why it’s important to decide which you want at the beginning and make your election in writing, via the proper form.

Note: Because Nevada is a community property state, the IRS permits a husband and wife LLC to be treated as a QJV- Qualified Joint Venture. This is not so in non-community property states–husband and wife LLCs are taxed as partnerships (or corporations), but not as disregarded entities.

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My husband has formed an LLC in which he is ‘sole owner’. He wants to give me ’49’ shares of the 100 shares. We live in Ohio. Can we do this ourselves or do we need an attorney? Is there papers we need to provide to someone or is just simply type up a doc saying he is granting me 49 shares?

– Wendy, Ohio

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Answer

When it comes to money or the law, you should put everything in writing, even if the transactions are “between friends” or even spouses.

Then they complain when there is a dispute, and it costs a fortune in legal fees to untangle the “he said, she said” without the help of a written document.

Please don’t be one of those 🙂

These transactions don’t just affect you, they also affect creditors and governmental authorities–so even if you “trust” your friends, relatives, spouse, it needs to be in writing.

A simple written document (prepared by yourself) transferring shares would likely suffice.

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Using your home address for your LLC address, won’t that be a bit confusing in terms of your personal bills, utilities, even to your mail carrier, etc? Won’t that seem as if you’re already commingling your business with your personal life?

Secondly, could you further explain what is looked at as commingling your business funds with your personal funds. You stated you can pay yourself everyday from your LLC, how is that not viewed as commingling? Where is the line drawn?

Thanks for all your help!

– Jackie, Missouri

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Answer

We have clients in the real estate business who have dozens of separate LLCs (usually one per property or group of properties), and they all use the same office address. It’s a very common practice.

As far as using your home address, that shouldn’t cause a commingling problem. Sure your company bills come to your home, as well as your personal utility bills–but, you’re not paying your personal utility bills with company checks, right?

In the new rental home I’m in, I sometimes get junk mail addressed to a home based business that the previous tenant ran. It never caused or causes a problem. Mail carriers are used to multiple people living at, and businesses receiving mail at, the same address.

Think about commingling this way, using a job as an example.

You receive a paycheck from your employer. It’s a check written on the employer’s bank account to you. You deposit the check in your bank account. From your bank account you pay all your personal bills.

Now, commingling would be if you took a couple of blank company checks from your employer and used them to pay your personal bills.

To avoid commingling, then, you simply need to only write the following kinds of checks from your LLC bank account:

1. Checks for the LLC’s business expenses;

2. Checks for profit distributions to the LLC’s members.

If you do that, then you are not commingling funds.

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How does one add a member to an existing single-member LLC? Can both members then be managing members? If necessary, how is this designated?

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Answer

You add a member by updating your Operating Agreement to show the new member. Some states require that you update your Articles of Organization as well.

In addition to updating the Operating Agreement, there should also be some document showing what the member paid for his/her membership units in the LLC and how many units the new member acquired.

Any member can have the authority of a managing member. This would be designated in the updated Operating Agreement.

Question About Starting A Single Member LLC With Intent to Add Members Later

Question: Hi, I am looking to form an LLC and I’ll be the only member right now. Being a small startup, I’d like to know “best practices” of how this company should run now and how it should be run as soon as I have other members. Thank You!! — by New Yorker Girl, (NY)

Answer

The main things are:

1. Create your LLC as soon as possible–before you start entering contracts or selling to the public. If you haven’t created one before, I would suggest using a full-service online incorporation company such as Legalzoom or the Company Corporation.

2. Open bank accounts, credit cards, paypal accounts, etc. in your LLC’s name as soon as possible.

3. Invest in a good accounting software (such as Quickbooks).

4. Make sure you have a written operating agreement–particularly once you add another member to your LLC. (See answer above about mechanics of adding member).

5. Use a payroll service to pay your employees so your business does not get behind on paying withholding taxes.

6. If your business has employees, make sure to obtain worker’s compensation insurance.

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I am looking to start an LLC with one partner. We will have to hire a CEO soon, as I do marketing and he does programming.

Does an LLC allow you to offer shares to a new partner?

I do not want to start an LLC and then have to incorporate immediately.
Thanks

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Answer

Yes, you can buy and sell membership interests in a limited liability company. These are generally equivalent to owning “shares” in a corporation. However, the Operating Agreement will specify particularly what powers a member has with respect to those shares and how taxes are allocated.

What that means is that you can write the rules for your LLC that makes membership units as easily transferable as in a corporation. On the other hand, you can tighten up the rules such that existing members have to approve new members, have the right of first refusal if a member wants to sell his/her units, prevent creditors that take membership units involuntarily from exercising decision making control, and so forth.

At a minimum, you will want written evidence that the shares were issued and money paid (or services rendered) in exchange for the membership units.

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Can a member be silenced by other members without reason?+

Petra, California

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Answer

Member rights vary state to state, but as a general rule, members holding a minority interest in the LLC are protected from oppression by the majority.

Many states give members the right, for example, to inspect the company records (including financials).

As a minority member, you have rights granted to you by state law, and by your Operating Agreement.

You’ll need to speak with a California attorney and provide him with a copy of your Operating Agreement so he or she can determine your rights.

A helpful thing to do as well, when dealing with an attorney in litigation, is to write a chronological outline of the events in dispute.

This will act as a framework for your lawyer to interpret the mountain of documents that will soon arrive through the litigation process.

The advantage to you is that the less work your lawyer does figuring out what the heck went on (remember, yours is not her only case), the sooner she can address the legal issues and obtain a better result for you at a lower fee.

Don’t try to guess at the law in your narrative, just explain in order what happened, paying careful attention to the who, what, where, when, and how of the events.

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I was told it is illegal in the State of Missouri to operate an LLC without an Operating Agreement. Please enlighten me. An Operating Agreement was never signed by the members. A “draft” was put together but that is where it stopped. To make a long story short, the members are blaming one member for all of the problems of the LLC, however this member is not the managing member of the LLC and has no control over anything.

Also, what can a member of a small LLC do when the managing member refuses to provide requested information such as financials and the member is attempting to sell their share but without information can not. The LLC operates at a loss and it is only at the end of the year when the LLC demands money from the members to pay such things as Taxes.

All members are equal partners – 1/3; 1/3; 1/3.

The LLC was set up to purchase and manage a commercial building.

– Dan, Missouri

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Answer

If there is significant money at stake here (or potential liability), you need a lawyer.

As far as it being “illegal” to have an LLC without an operating agreement in Missouri, here is how the statute reads:

§ 347.081 RSMo. Operating agreement, contents — policy statement — enforceability, remedies

1. The member or members of a limited liability company shall adopt an operating agreement containing such provisions as such member or members may deem appropriate, subject only to the provisions of sections 347.010 to 347.187 and other law.

The operating agreement may contain any provision, not inconsistent with law, relating to the conduct of the business and affairs of the limited liability company, its rights and powers, and the rights, powers and duties of its members, managers, agents or employees, including…

So, Missouri law does say that an LLC “shall” adopt an operating agreement.

It doesn’t say it needs to be writing.

So, what kind of verbal agreement do the members have?

My guess is that each one has a different recollection of what they agreed to.

You see where this is going?

If there is significant money at stake, resolving this situation could involve large legal fees.

For everyone out there reading this, it is critical that you have a written operating agreement for your LLC.

This is a place where money spent on a lawyer–particularly if there is a lot of money in the company and multiple members–might be well spent.

In either case, the operating agreement is the first thing any lawyer will ask you when it comes time to resolve disputes among the members.

Without a written agreement, we are stuck with “he said, she said”, which are almost always more costly and risky to litigate then when you have written documents to rely on.

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If I am operating a home based business and use a mailbox forwarding service, can I use that address as my business address and registered agent address (if I am sole proprietor) when I register my business with the state?

Would I have to use my home address first when I register and then use my mailbox forwarding service. I would prefer not to get all the solicitations to my home.

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Answer

Your registered agent address must be a physical, street address. I’m not sure exactly how the mailbox forwarding company you’re using is setup, so it’s unclear if it would “count” as a physical, street address for the purposes of your registered agent.

The best way to avoid too much junk mail to your home address is to use the registered agent service offered by an llc creation service.

For a reasonable annual fee, they will act as your registered agent and keep your home address off the junk mail lists (which are compiled from the public records of new businesses formed).

When dealing with your customers and suppliers, you of course use your mail forwarding service address and NOT your registered agent address.

The registered agent address is only for the state’s purposes so you can be served summons and other legal papers.

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I need to form a company that will maintain a home office (primary office) in my personal residence in Maine (1 of 2 physical offices, the other to be located abroad), conduct business and generate revenue solely outside of the US with the exception of management/consultant services provided from my home office (about 50% of company services). I do not wish to take the revenue of the company as personal income, rather to be paid a consulting fee or dividend from company income. Company revenue will payout some fees that will go to other consultants and the company will pay for office costs and any other business related expenses. I would be and remain sole owner of the LLC with survivorship rights for my heirs. Company profit will remain with the company and may be invested in various vehicles (stocks, bonds, etc) to provide further income for the company. Would it be more advantageous to form an LLC in Delaware or Maine? Delaware has no corporate taxes, but if formed in Delaware would I need to file as a foreign entity doing business in Maine noting the business circumstance described above, or does that circumstance actually constitute doing business in Maine by virtue of maintaining an office in my home there? Thank you for your consideration.

– Bob, Maine

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Answer

Your Maine office will probably count as transacting business in Maine, so you’d have to qualify as a foreign entity, particularly if you have employees at the office.

Is the LLC going to be taxed as a corporation or as a partnership?

The reason I ask is that if the LLC will be taxed as a partnership, the fact that Delaware has no corporate state tax is irrelevant because the LLC will pay no entity-level taxes anyway.

Instead, state taxes will be determined by the citizenship of the individual member receiving profits from the LLC(in your case, your citizenship in Maine).

If the LLC is taxed as a corporation, then the corporation can avoid state taxation at the entity level by incorporating in a state without state income tax on corporations. However, if you pay a salary from the LLC, then you will pay state income tax on that salary. Same if you take a dividend from the LLC.

So you will not avoid all Maine state taxes even if you form your LLC in Delaware (though you will avoid some).

As always, check with a tax adviser and attorney–I’m just a guy on the internet and I don’t give legal or financial advice, just my opinions.

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Is it possible to have a single member LLC, that is managed by a another individual, that has no ownership interest in the company?

If yes, what agreements would one need?

– John, California

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Answer

You can create such an arrangement, and it is called, as you accurately guessed, a “Manager Managed Single Member LLC”.

The beauty of the limited liability company is that you have great flexibility in how your LLC is managed and owned.

Management and ownership of your LLC is controlled by the Operating Agreement.

Your Operating Agreement can specify pretty much any arrangement you and the other members agree on, from profit distribution, guaranteed payments, how taxes are passed through, and more.

If you use a service like Legalzoom to form your limited liability company, they will ask you questions regarding whether you would like the LLC to be member-managed or manager-managed.

Answer those questions accordingly.

All Legalzoom LLC packages come with a customized Operating Agreement. This Operating Agreement will be a good start for most people’s purposes. If you need further help, you should consult with a California attorney to make appropriate modifications.

It will be far less expensive to have your CA attorney modify an Operating Agreement from Legalzoom than to go to have the same attorney create an Operating Agreement from scratch.

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Hello. Great website with a lot of information.

Here’s my scenario: I have not yet created my LLC yet. I am attempting to buy a small multifamily property – 16 units. For the down payment, I have 8 investors (mainly family members and close friends) that are each going to put up $10,000. I will pay them back with a lump sum including a nice interest rate. They could be silent partners but I do not wish to include them in the LLC. Do I need to? Should I set up a separate LLC just for them? What other legal form or documentation could be set up so that they are at ease with loaning me the money? Any advise is greatly appreciated.

– Rob, Texas

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Answer

If you want them to actually own a percentage of the property, then they should be members of the “main” LLC. There is no need to create a separate LLC just for the investors.

On the other hand, if they are merely lenders, then you’ll need signed promissory notes by which the LLC agrees to repay the loans plus interest.

From your description of the business arrangement between you and your friends that you’re going to repay the principal plus interest, it sounds like this is a lender-borrower relationship and not a co-ownership situation.

Texas is a deed of trust state, so your lenders might insist on a deed of trust on the property to secure the promissory notes.

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Hello,

Our LLC of three members would like to have equal ownership and membership control, regardless of capital contributions made by individuals. What one pays in belongs to all, so to speak. There are three members, and all decisions made must be unanimous, and ownership is based on the number of members, in this case each member owns one-third of the company, assets, debts, etc.

Based on that, we would like to craft an op agreement that does not require capital accounts and the associated tracking, only a statement that the members own they cut in based on 100% divided by the # of members, period.

Info:

We are based in CO.
We are an entertainment company that either publishes or sells publishing rights for various media – no physical goods.

Thanks!

J.S.

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Answer

The members of an LLC can agree to essentially any distribution and ownership scheme they wish, including the one outlined above.

Of course, there might be tax consequences to the different members based on the allocations. Therefore, you should consult a tax attorney who specializes in partnership and closely held corporation tax.

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Hello there,

My business partner and I are in the process of buying a business. We want to set up one LLC to actually be the purchasing party.This will be a single member LLC in the name of my partner only.
We would then like to set up a second LLC that will hopefully act as the parent company and will own all of the assets of the original LLC.

How will I proceed with this set up. Will I need to set up the parent company first or at the same time.

Thanks

Our Affiliated Site

Answer

Setup the LLC to be owned by your partner first and purchase the business.

Then, form the second LLC.

You will then transfer ownership of the first LLC to the second LLC by having the second LLC purchase your partner’s membership interest (aka shares) of the first.

Now you will have LLC-1 whose membership interest is entirely owned by LLC-2. LLC-2’s membership interest will be owned by you and your partner in whatever proportions you decide.

You will need to memorialize these transfers in writing with appropriate legal documents.

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hi,
I wish to be the registered agent to my llc company in Virginia.

What is the form do I need to fill in and submit to VA state corporation commission ?

Do I need to mail this to
Clerk of the State Corporation Commission
P.O. Box 1197
Richmond, Virginia 23218-1197

Thanks

Our Affiliated Site

Answer

Assuming that you have already formed your Virginia LLC, you can request a change of registered agent form here:

http://www.scc.virginia.gov/clk/ElectronicFormRequest.aspx

If you have not formed your Virginia LLC yet, then you will name your registered agent on line 4 of your Articles of Organization, which you can download in .PDF format below:

Virginia Articles of Organization.

For those with LLC’s outside of Virginia, the same situation applies.

If you have not already filed your Articles of Organization, then that is where you will select your registered agent.

If you already have filed, most states have a form you can file to change/update your registered agent address.

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What if I decide later to sell 50% of my SMLLC. Would it be sold as a member interest? If not, what would I be selling exactly? Or, can I even bring in a “partner” in this structure since the name itself indicates a single member?

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Answer

An LLC with one member is a “single member LLC”. By selling half your member interest to another person, the LLC is now a multi-member LLC. A membership interest in an LLC is an asset which can be sold just like stock in a c-corporation.

Check with your accountant to determine the tax implications of selling an LLC membership interest–you might show either a gain or loss on the sale of that interest (just like you would selling stock in a corporation). Depending on how long you held that interest before selling it, the sale could be classified as either a long term or short term capital gain.

After the sale, while the LLC would no longer technically be a single-member LLC, you would not have to refile your Articles of Organization or anything like that.  Most states do require annual reports from all LLCs, and some of those reports include listing all members of the LLC.

The only change you might have to make is if the LLC was previously filing its taxes as a disregarded entity, the LLC would now have to file a an annual partnership tax return (Form 1065) and issue K-1s to each member. The pass-through taxation would remain the same (unless you specifically elect otherwise and file the appropriate tax forms).

Finally, when your company takes on a new member for the first time, you should review the LLC’s operating agreement carefully. Oftentimes, an LLC that starts out as a single member will have a simplified operating agreement.

Once additional members are present, your operating agreement should reflect the issues that having additional members causes.

For example, if a member wants to sell their interest, do the other members get right of first refusal to purchase the shares before an outsider does?

How are profits divided? Do you take into account the fact that the founding member invested money in the LLC before the new member joined?

Just a few things to think over in putting together your deal.

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If an LLC protects a person’s personal assets from liability does a spouse have to be listed as a member to also be protected even if not involved in the business? Or can just the spouse running the business be listed?

– Carrie, Minnesota

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Answer

A limited liability does not “protect” your personal assets by virtue of you being listed as a member. The LLC protects you because it isn’t you–its debts are its own.

Just as you are not responsible for your neighbor’s debts or my debts, you are not responsible for an LLC’s debts.

Think of a member of an LLC as a shareholder in a company. If I’m a shareholder in Microsoft, I’m not responsible for Microsoft’s debts. If I’m not a shareholder in Microsoft, I’m still not responsible for its debts. The reason I’m a shareholder is because I own a piece of the company and share in its profits.

Therefore, if you want your spouse to own part of the limited liability company, then she/he should be a member. If not, then they should not be a member.

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I currently have an llc in the state of CT, and I will be moving to Florida shortly. I would like to know if the llc can be transferred and how much it will cost.

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Answer

I’m assuming that the CT llc’s business will be operated in Florida once you move.

If the business is not being operated in the new state (for example, the CT LLC owns a piece of real estate in CT that obviously will remain in CT after you move) then you need to change nothing. There is nothing preventing a Florida resident from owning stock in a CT LLC or corporation.

On the other hand, if the LLC is actually going to be operating in Florida, then you’ll need to get the CT LLC qualified as a “foreign corporation” in Florida. So you wouldn’t be transferring from Connecticut to Florida so much as becoming a Florida AND Connecticut LLC.

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Do members of LLC had to added to LLC at the time of filing or operating agreement is enough to show the ownership of a given member.

We are 10 friends who are trying to form a LLC and question is whether a manager is good enough or all of the members should be added to reflect the ownership in the company.

Regards…Abinder

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Answer

The Articles of Organization do not control who can ultimately become a member of your LLC. As long as your Operating Agreement permits it, members can transfer their shares in the LLC among themselves or sell to outside parties to bring more investors into the company.

You will obviously want some writing documenting each member’s ownership and transfers of ownership, which can be done through an amendment or exhibit to your operating agreement.

Some states require that the LLC file reports showing the identity of the current members.

We have a sub-s corp and a dba, each with it’s own Fein#. We file one tax return under the sub-s corp name which includes all the activities of the dba. Since we do almost all of our business under the name of the s-corp should we drop the dba fein number or put the dba under the umbrella of the s-corp?

– Carl, Illinois

Our Affiliated Site

Answer

I’m not sure why the DBA has a separate FEIN.

The purpose of a DBA is to do business under another name, but without creating a separate legal entity.

DBAs are often used by sole proprietors to operate their business with a trade name rather than their own name. You can also file a DBA to use a trade name for your business other than the legal entity name.

For example, say you had an entity called XYZ Enterprises, Inc. (taxed as an s-corp). The name of your entity doesn’t really describe your business, so you file a DBA to use the name XYZ Lawncare.  XYZ Lawncare wouldn’t have a separate FEIN from XYZ Enterprises, Inc. The DBA allows you to publicly use a more identifiable and brandable name for your business than the name of the legal entity.

I would ask whomever set you up with a DBA under the s-corp why you did so, and if there is no longer a compelling reason for it, I’d stop using it.

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Do we need to create a new corporation? Do we need to create a new ein?

we file as an s- corp and want to gain the benefit overall of the new company that will generate at a loss for a few years.

– Jennifer, Texas

Our Affiliated Site

Answer

When you say a “sister corporation”, do you mean that you want an entity that is legally separate from the one you currently have?

In other words, do you want to prevent the liabilities of one company from ‘flowing’ into the other?

If so, and if you want to keep the two companies separate in terms of liabilities, then you’ll need to form separate legal entities, which means forming a new LLC with its own name, EIN, etc.

Otherwise, just have this new “business” operate within your existing LLC.

I notice you anticipate the new business incurring a loss during the startup period.

Here, you’ll want to avoid the c-corporation and stick to partnership or single member LLC (disregarded entity) status to flow those losses through to your personal income tax return and take the deduction.

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I’m leaning towards creating an LLC and was wondering if I need to use my home address as the LLCs address or can I use a different address like a PO Box from a UPS Store?

Also I plan on naming my LLC different from my 3 websites. I want them to be covered under my LLC, so would I need to file “Doing Business As” – DBAs for each website? And is that done at the secretary of state?

Also since I will be the owner, single member is it necessary to get an EIN? or can I just use my Social Security Number?

– Joe, Michigan

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Answer

1. You can use your home address for your LLC’s business address and registered agent address. Understand that the registered agent address is public knowledge. This may or may not be a concern to use. Using an outside service will give you more privacy, but it costs more money.

You cannot use a PO Box as a registered agent address.

2. You don’t need a DBA for each domain name. Make sure that the LLC is listed as the owner of the site, that the LLC pays for the hosting, etc., and that the LLC registers for copyright for the site. In other words, you want it to be clear that the LLC is owner of all the sites. That includes having the LLC open an Adsense account in its own name (if you use Adsense); any affiliate accounts in its own name, Paypal accounts and so on.

3. A separate EIN is a good idea even for single member LLCs, even if not necessarily required because you don’t have employees.

There is no cost to obtain an EIN if you do it yourself by filing a Form SS-4 (you can even fax it or do it over the phone). You’ll be using your EIN to apply for wholesale accounts, paypal, bank accounts, affiliate accounts, etc., and using the EIN instead of your Social Security name gives you a little more privacy.

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When choosing who should run my llc members or managers what are the differences?

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Answer

A member is the owner of the LLC. Think of them like shareholders in a corporation.

A “manager” is a person who has the power to make decisions on behalf of the LLC.

In a member-managed LLC, the members (owners), make all the decisions. It’s sort of like running a partnership.

In a manager-managed LLC, a manager (who is not an owner/member), is hired by the owner(s) to manage the day to day operations of the company.

Before the IRS changed the rules to allow LLCs to simply choose whether to be taxed as partnerships or corporations (called “check the box” regulations), whether an LLC was manager or member-managed could impact its tax classification. There was a four part test to determine if the LLC was more like a corporation or a partnership.

This is not an issue anymore, which is good because the old system was complex and confusing.

If the members (owners) of the LLC are going to operate the LLC on a daily basis, the LLC should be member-managed.

If the members are hiring some non-owner to manage the company, then it is a manager-managed LLC and they need to appoint that person as Manager.

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