What Is a Limited Liability Company (LLC) and How to Form One

If you’re starting a business or already are a small business owner, chances are you’ve reached out to a lawyer or to an online legal service for help. There are many legal issues to keep in mind when running a business, a primary one being your choice of business entity. Business owners usually form LLCs to reduce their financial risk and to keep their taxes simple.

The LLC is a relatively new business type and is somewhat of a hybrid between a corporation and a partnership. As a middle ground between these two entities, LLCs incorporate the benefits of both business types to serve a growing need among small businesses for more tax and operational flexibility. All states now recognize the LLC as a valid business structure.

There are many things to consider when deciding whether or not you should form an LLC, including the costs of formation and where you see your business headed. Keep reading for a comprehensive breakdown of the pros and cons of LLCs and other options out there.

Overview of LLCs

An LLC is a very flexible business structure. It’s consider a legal entity that’s separate from the owner or owners. This means business creditors can’t come after the personal assets of the owners.

It’s possible to have single-member LLC, which is an LLC with just one owner. Alternatively, you can start an LLC with one or more business partners. The owners of an LLC are called members, and they each hold membership units or a certain ownership stake in the business. For instance, you can have a two-member LLC where each member owns half of the business and is entitled to half of the profits.

The day-to-day decisions of an LLC can be entrusted to the members, or the LLC can be manager-managed. The members can elect one of their own to be the manager, or they can elect a professional manager from outside the organization. When deciding between a member-managed vs. manager-managed LLC, think about how much the owners want to participate. Unless the owners are passive investors, most business owners want a say in how the business is run, so member-managed LLCs are more common among small businesses. In a member-managed LLC, members vote on important decisions.

Many states recognize a special type of LLC for professional industries, such as doctors and lawyers. This special type of LLC is called a professional limited liability company (PLLC). In several states, the rules for PLLC formation vary from the regular LLC formation process.

The Benefits of Forming an LLC

There are many things that you will need to consider when deciding whether or not to form an LLC, including your business’s needs and your plans for the future.

Here are the main benefits of forming an LLC:

Reduce Liability

LLCs create a level of separation between owners and their business. This means that if their company were to be sued, the owner would not be personally sued, only the business. In addition, the personal assets of owners in a limited liability company are not on the line if the company were to go into debt. Of course, there are exceptions where a court will pierce the veil and hold owners personally liable, but as long as the business maintains independence from the owners’ finances, you should be safe.

Less Complex Than Corporations

A reason that LLCs are often favored for smaller individually-run businesses is that they require less paperwork to establish and operate. In contrast to corporations, LLCs need less record-keeping and do not require shareholder or director meetings in the same way that C-corporations or S-corporations do. If you find yourself busy and don’t plan on hiring additional staff to help with paperwork any time soon, you might find this attribute incredibly useful. That said, LLCs do require more paperwork than a sole proprietorship or general partnership.

Avoid “Double Taxation”

By default, LLCs are taxed as pass-through entities. This means that the LLC itself doesn’t pay taxes. Instead, the business’s income and expenses are reported on each owner’s personal income tax return. LLCs can choose to be taxed as a C-corp or S-corp. If you opt to be taxed as a C-corporation, then your business earnings could be subject to double taxation. The company first pays taxes on profits, and any dividends that owners receive are taxed at their personal income tax rate.

Make Your Business Official

Once you file to become a limited liability company, you’ll legally have “LLC” in the title of your business, on checks, or on invoices. This title demonstrates a level of organization and professionalism to potential customers and clients. While this isn’t a good enough reason in itself to start an LLC, it is a perk.

Ownership Flexibility

Most states don’t place restrictions on LLC management and ownership. As we mentioned above, LLCs can either be managed by their members or by a manager. Unlike S-corporations, there’s no limit on the number of LLC owners. LLC owners can include individuals, domestic entities, foreigners, and foreign entities. If any of these situations apply to your business, an LLC is probably a good option for you to consider.

The Disadvantages of Forming an LLC

There are certain downsides to forming an LLC, including complications due to the requirement for LLCs to distribute profits to all owners. Plus, if you need investors or plan on going public someday, there are several potential disadvantages to consider.

Here are the disadvantages of forming an LLC:

Equity Compensation Is More Difficult

Many businesses choose to offer incentives to employees in the form of equity, which is the value of a company in shares. It’s possible for LLCs to grant profits interest, which is a right to a portion of the LLC’s future profits and appreciation in value. However, LLCs cannot grant stock options or give employees actual shares in the company. This could be a disadvantage if you have a startup and are trying to recruit talent.

Investors Often Prefer C-Corporations

C-Corporations are more attractive investment opportunities because they can offer stocks that do not require the holder to pay taxes until the asset is sold. As an LLC, raising capital from investors requires drawing up more complicated agreements. Many investors are much less likely to contribute because the governing contracts of LLCs can vary more widely than C-corporations, which require less effort to assess before investing.

Some Paperwork Is Required

LLCs with multiple owners, or that are taxed as corporations will need a new employer identification number (EIN) to file federal taxes. You’ll also need to set up new business bank accounts to keep track of business income and expenses for tax purposes. While this isn’t very hard, having multiple accounts can pose a difficulty when you’re used to only having your personal bank account to manage. And once your business has a bank account, it shouldn’t be used for personal deposits or withdrawals.

Tax Disadvantages

While the structure of an LLC allows for pass-through taxation, this means that all income will be taxed at the owner’s personal income tax rates. Under current tax law, pass-through entities can claim a 20% business tax deduction, which can lower your tax bill. However, you might still end up paying less if you organize your company as a C-corp. In addition, members must pay taxes on their share of LLC earnings, even if they are never distributed to them. LLCs also aren’t exempt from property taxes like corporations, and LLC owners must pay the full amount of self-employment taxes themselves. Corporations can save on self-employment taxes by distributing dividends, which are exempt from self-employment taxes.

How to Form an LLC

Forming an LLC requires filling out some paperwork and paying some fees, but it is a relatively straightforward process that should be easy with the help of your lawyer and knowledge of your state’s individual requirements.

Here are the steps you need to take to form an LLC:

1. Choose a Name for Your LLC

Depending on the state you live in there are varying requirements for your LLC’s name. Often across all states, the name must include “limited liability company,” “LLC,” or “L.L.C.” somewhere in the title. In addition, the name cannot be easily confused with a corporation or an LLC that is already registered with the state. Certain terms, such as “insurance” or “bank,” can’t be used in your business name unless you’re licensed to operate in that industry.

2. Designate a Registered Agent

A registered agent is an individual or company who accepts legal mail on your business’s behalf and forwards the documents to you. LLCs in all states must designate a registered agent, sometimes also called a statutory agent. If an individual serves as your registered agent, they must be at least 18 years old and a resident of the state that you’re operating in. Alternatively, you can choose a registered agent service such as IncFile.

3. Obtain Business Permits

The next step is to obtain permits that your company needs to operate. States and local governments issue business licenses to companies in a range of industries. Companies that sell tangible goods or taxable services need to register for a seller’s permit and collect and report sales taxes. In some cases, you might also need to get a zoning permit.

4. File Articles of Organization

Filing your articles of organization with the secretary of state’s office makes it official. The articles contain your business name and address, statement of the LLC’s purpose, guidelines for management, and the duration of the LLC. After the state accepts your articles of organization, you are ready to start operating.

5. Create an LLC Operating Agreement

Though it’s not often required by state law, an LLC operating agreement is essential as it governs the role of members and how the company will function. Typically this is where members’ percentage stake in the company, responsibilities, and voting power are listed. This agreement also includes how the LLC will be managed, rules for meetings, and how profits will be allocated.

6. Maintain Your LLC

Now that your business is officially an LLC, there are requirements in place by the state to keep your company in good standing. You will need to keep financial records and minutes of any major decisions. To ensure your business is not dissolved, you’ll need to keep records of employees, appoint a registered agent who can receive legal notices, and file taxes.

State Guides to Forming an LLC

The process for forming an LLC is slightly different in every state. Review our state guides to LLC formation to learn more details about your state’s requirements:

• Forming an LLC in California
• Forming an LLC in Delaware
• Forming an LLC in Georgia
• Forming an LLC in Illinois
• Forming an LLC in New York
• Forming an LLC in Ohio
• Forming an LLC in Texas
• Forming an LLC in Virginia

Other Types of Entities to Consider

You’re likely wondering how an LLC differs from other business structures. Here’s a quick overview of the different types of entities that a business may form, and how they compare to an LLC.

• Sole proprietorships cost nothing to start and are the simplest form of small business because you don’t have to register anything with the state to form one. Sole proprietorships are usually the best option when an owner only works on their business part time and has no employees. With sole proprietorships, the company is not a separate entity and the owner has no protection against personal liability.
• Partnerships require at least two owners and generally offer no liability protection. They are easy and economical to start, just like sole proprietorships. Like LLCs, partnerships are pass-through entities. For liability protection, you can form a variation on a partnership called a limited liability partnership (LLP).
• S-corporations are corporations that are taxed as pass-through entities. Owners in S-corps are also employees who must receive a reasonable salary and receive liability protection. While they can be very similar to LLCs, the difference is that S-corporations cannot have more than 100 shareholders, foreign owners, or owners that are companies.
• C-corporations are standard corporations and can be more expensive to own and operate than other business structures. As with LLCs, they are separate entities that provide limited liability for owners. C-corporations can go public, easily offer equity to investors, and obtain financing via venture capitalists. However, they require more structure, boards, and meetings, and do not receive pass-through tax benefits.

Think through all your options and plans for the future of your business before committing to a business structure.

Forming an LLC: The Bottom Line

An LLC can be an excellent choice of business structure for small businesses. You enjoy a mix of tax flexibility, operational choice, and minimum compliance requirements. For help forming an LLC, we suggest an online legal service like IncFile. IncFile will help you file your articles of organization and create an LLC operating agreement. They will also include one year of free registered agent service.

Form Your LLC With IncFile

For a summary of what we’ve covered, and to quickly determine whether you should form an LLC, check out our infographic below:

Sources:
MoneyUnder30 | LegalZoom | GetButtonedUp | Nolo | FreelancersUnion | Entrepreneur | Timbertax | JohnCunningham | Entrepreneur | FreelancersUnion | NerdWallet | StartupLawBlog | NSBA | LegalZoom | BusinessTown | TheBalance | USAToday | BloomLawfirm | LegalZoom | BizFilings | QuickSprout | LLCUniversity | Nolo