The limited liability company (LLC) is one of the most commonly used business entity types. For many businesses, forming an LLC provides significant benefits, including flexible ownership arrangements and governance, as well as strategic tax planning. However, as a business develops, it sometimes becomes necessary to consider whether the way the entity is organized best facilitates the company's future growth. In such cases, LLC owners (also called members) often consider converting the LLC to a corporation.
When considering whether to convert your LLC into a corporation, it is vital to reevaluate ownership structures, governance needs, tax needs, and the organization's goals for the future. Here are a few critical questions to help you evaluate the best choice for your company:
- What is the entity's state of formation? The first thing to understand is whether your state of formation allows conversion. As of this writing, state law varies. There is also no consensus on the exact process for effectuating a conversion if it is allowed. LLC owners must look to their state law to understand what steps to take and how much a conversion would cost. If your state does not require a fixed conversion method, you may consider workarounds that produce the same outcome. One of the most common alternatives is a statutory merger. A statutory merger involves creating a new company—in this case, a corporation—that merges with the original LLC. After the merger occurs, the LLC is completely absorbed and ceases to exist. Contractual and statutory tools are used to create the new entity and dissolve the original one.
- What are the organization's ownership requirements? LLCs and corporations differ significantly with respect to ownership, so this is an important factor that LLC members must consider. Drafters can contractually restrict ownership by corporate shareholders, which is usually easily transferable, and make ownership by LLC members, which is typically subject to restrictions on transfers, more flexible. However, careful drafting is required to modify these characteristics, which are often not part of the standard operations for each of these entities. LLC members may decide to convert the business to a corporation if they would like the option of offering equity to investors, or in some cases, to employees. Gauge what ownership structure your company requires to be profitable and successful.
- What tax-saving strategies are available to the organization? Weighing the tax implications of a potential conversion is extremely important because the LLC and the corporation may produce significantly different results. For instance, unless an LLC has elected to be taxed as a C corporation, it is a pass-through tax entity, meaning that LLC members report information about their business on their personal income tax returns, and the LLC is not responsible for paying its own taxes. This differs from the C corporation, which is subject to double taxation—at both the owner (shareholder) and the entity levels. However, it is essential to keep in mind that the LLC does allow its members to elect for the LLC to be taxed as a corporation. In contrast, a corporation may not elect to be taxed as a partnership. The only way for a corporation to enjoy pass-through taxation is if the corporation chooses to be taxed under subchapter S, better known as an S corporation election.
In addition to potential changes to ongoing tax requirements, there may also be a one-time tax cost to factor into your decision. If you receive cash or property as a result of the conversion, there may be tax liabilities, so having a tax professional assist you in the process is critical.
The decision to convert from an LLC to a corporation should not be made lightly. Businesses interested in obtaining significant funding from outside investors through venture capital or providing stock options to employees benefit the most from taking this leap.
If you are trying to determine the best course of action for your organization, we can help. Our team of dedicated attorneys will help you identify the pros and cons of each option and support you in implementing your choice. Please call us at 914-530-3070 to schedule a consultation with our team.