If you are starting a new business, the type of business entity you decide to establish will have an impact on the extent of personal liability, how the business is taxed, its management, and other factors. There are a wide variety of options, which can make this decision quite overwhelming.
Limited liability companies (LLCs) and limited liability partnerships (LLPs) are two business forms that share some characteristics, but also have some important distinctions.
Liability
LLCs protect members and managers from personal liability for the LLC’s debts and obligations, as well as for any wrongdoing or negligence committed by the other owners or the employees of the LLC. However, it will not protect members from their own negligence or wrongdoing committed in relation to the business.
LLPs provide similar protection from personal liability for the partners. Generally, the partners in an LLP are not personally liable for business debts and obligations. Thus, creditors of LLPs cannot reach the personal assets of the partners and are limited to the assets of the business.
In addition, in most states, partners in an LLP are not personally liable for the mistakes or wrongdoing (negligence, malpractice, or misconduct) of the other partners. However, as is the case with LLCs, partners can be personally liable for their own negligence or wrongdoing. The nature and extent of liability protection varies depending upon the state in which the LLP is formed, so it is important to meet with an attorney to verify the scope of the protection in your state.
Note: A limited liability partnership is different from a limited partnership: In a limited partnership, the managing partner(s) are subject to personal liability for the business’s obligations. To qualify for limited liability, the limited partners cannot play a role in the management of the business but must be merely passive investors.
In certain limited circumstances, a court may “pierce the veil,” holding the members or partners of LLCs and LLPs personally liable for business debts or obligations: This could occur when the business is merely the “alter ego” of the members or partners, the business form is used to perpetuate a wrong, or there is a need to achieve an equitable result.
Tax Treatment
LLCs are not typically taxed as a separate business entity; rather, the profits and losses pass through to the members, according to their percentage of membership interest in the business. The members then report the profits and losses on their individual tax returns. Like an LLC, an LLP is not a tax-paying entity. Rather, its profits and losses are passed through to the partners according to their percentage shares in the business. The partners pay taxes on their shares at the individual tax rate.
The IRS treats LLCs and LLPs are treated as partnerships so each must file a partnership information return. One exception to this is a single-member LLC, which is treated as a sole proprietorship and does not have to file a partnership information return.
Both LLCs and LLPs can elect to be taxed as an S or C corporation if they meet certain qualifications.
Formalities
Both LLCs and LLPs avoid the extensive recordkeeping and operating requirements imposed on corporations. LLCs typically must file articles of organization providing basic information about the business with a state or local agency and pay a filing fee. This is the act that creates the LLC in most states.
Partnerships are created automatically when two or more individuals engage in a business enterprise for profit. However, partnerships that elect to become LLPs must typically file a registration form with their state’s secretary of state to acquire status as an LLP and enjoy limited liability benefits.
Both entities may also have to file an annual report with the state. Regardless of which entity you choose, an attorney can help make sure you are meeting your ongoing responsibilities to the state.
Business Purpose
Some states limit the use of LLPs to businesses offering professional services, such as lawyers, accountants, or doctors.
LLCs, on the other hand, usually can be formed for any type of business. In fact, many states allow LLCs to be formed for any lawful purpose, that is, a specific business purpose is not required. However, a few states prohibit certain licensed professionals from forming an LLC, and others require professionals to form a special kind of LLC called a professional limited liability company.
Because the law varies by state, it is essential to work with us to ascertain the types of entities your business is permitted to form.
Management
In most states, LLCs can elect to be member managed, or the members can designate or hire one or more managers, creating a manager-managed LLC. All the members can participate in the management of a member-managed LLC, although they may choose to alter these rights and responsibilities in their operating agreement.
Only managers can manage the operations of a manager-managed LLC. If the articles of organization do not specify that the parties have elected a manager-managed structure, state LLC statutes generally default to a member-managed LLC.
In an LLP, all the partners can participate in the management of the business, as is the case in a general partnership. Unlike an LLC, there is no option to hire an outside manager.
We Can Help
The factors discussed above are only a few of the important considerations relevant to choosing the right structure for your business. The decision about which type of business entity to form is a complex one that will depend on your particular circumstances and the goals you seek to achieve.
We can provide guidance about the type of business structure that will work best for you. Contact us to set up a consultation with our knowledgeable business attorneys whose experience in business law can help you make the best decision for your particular business.