From Wikipedia, the free encyclopedia - View original article
|European Union / EEA|
|UK / Ireland / Commonwealth|
A limited liability company (LLC) is a flexible form of enterprise that blends elements of partnership and corporate structures. It is a legal form of company that provides limited liability to its owners in the vast majority of United States jurisdictions. LLCs do not need to be organized for profit.
Often incorrectly called a "limited liability corporation" (instead of company), it is a hybrid business entity having certain characteristics of both a corporation and a partnership or sole proprietorship (depending on how many owners there are). An LLC, although a business entity, is a type of unincorporated association and is not a corporation. The primary characteristic an LLC shares with a corporation is limited liability, and the primary characteristic it shares with a partnership is the availability of pass-through income taxation. It is often more flexible than a corporation, and it is well-suited for companies with a single owner.
LLC members are subject to the same alter ego piercing theories as corporate shareholders. However, it is more difficult to pierce the LLC veil because LLCs do not have many formalities to maintain. So long as the LLC and the members do not commingle funds, it would be difficult to pierce its veil. Membership interests in LLCs and partnership interests are also afforded a significant level of protection through the charging order mechanism. The charging order limits the creditor of a debtor-partner or a debtor-member to the debtor’s share of distributions, without conferring on the creditor any voting or management rights. Limited liability company members may, in certain circumstances, also incur a personal liability in cases where distributions to members render the LLC insolvent.
The phrase "unless otherwise provided for in the operating agreement" (or its equivalent) is found throughout all existing LLC statutes and is responsible for the flexibility the members of the LLC have in deciding how their LLC will be governed (provided it does not go outside legal bounds). State statutes typically provide automatic or "default" rules for how an LLC will be governed unless the operating agreement provides otherwise.
Similarly, the phrase “unless otherwise provided for in the by laws” is also found in all corporation law statutes but often refers only to a narrower range of matters.
For U.S. federal income tax purposes, an LLC is treated by default as a pass-through entity. If there is only one member in the company, the LLC is treated as a “disregarded entity” for tax purposes, and an individual owner would report the LLC’s income or loss on Schedule C of his or her individual tax return. The default tax status for LLCs with multiple members is as a partnership, which is required to report income and loss on IRS Form 1065. Under partnership tax treatment, each member of the LLC, as is the case for all partners of a partnership, annually receives a Form K-1 reporting the member's distributive share of the LLC's income or loss that is then reported on the member's individual income tax return.
An LLC with either single or multiple members may elect to be taxed as a corporation through the filing of IRS Form 8832. After electing corporate tax status, an LLC may further elect to be treated as a regular C corporation (taxation of the entity’s income prior to any dividends or distributions to the members and then taxation of the dividends or distributions once received as income by the members) or as an S corporation (entity level income and loss passes through to the members). Some commentators have recommended an LLC taxed as an S-corporation as the best possible small business structure. It combines the simplicity and flexibility of an LLC with the tax benefits of an S-corporation (self-employment tax savings).
Although there is no statutory requirement for an operating agreement in most jurisdictions, members of a multiple member LLC who operate without one may run into problems. Unlike state laws regarding stock corporations, which are very well developed and provide for a variety of governance and protective provisions for the corporation and its shareholders, most states do not dictate detailed governance and protective provisions for the members of a limited liability company. Thus, in the absence of such statutory provisions, the members of an LLC must establish governance and protective provisions pursuant to an operating agreement or similar governing document.
Companies with limited liability exist in business law worldwide. However, the limited liability company is a specific legal structure defined by the laws of U.S. states, with quite distinct characteristics. Many other countries have similar structures.
"Sociedad de Responsabilidad Limitada" (S.R.L.) (Ley de sociedades comerciales 19.550) The capital is divided into "quotas" (unlike the "Sociedades Anonimas (S.A.)" which capital is divided in "shares"); members limit their responsibility to the nominal value of the quotas subscribed or later acquired. The number of members shall not exceed fifty. The administration and representation of the company corresponds to one or more managers, members of the company or not, designated for a specified or unspecified period of time. Alternates may be selected in case of vacancy.
In Belgium, there are several forms of corporation which provide limited liability. The Besloten Vennootschap met Beperkte Aansprakelijkheid (BVBA) in Dutch, or Société privée à responsabilité limitée (SPRL) in French, is the smallest, with minimum required startup capital of €18,550, and is mostly used by smaller business owners to protect themselves in case of bankruptcy. Profits are not taxed personally at the member level but always at the BVBA level.
Bosnian and Herzegovinian legislation, similarly to that in Croatia, contemplates LLCs as društvo s ograničenom odgovornošću (d.o.o.). Companies using this structure append the abbreviation d.o.o. to their company name. A shareholder or member in a d.o.o. is only personally liable up to the value of the member’s investment in the company.
The corporate structure in Brazilian law most similar to the American LLC is the Sociedade Limitada (“Ltda.”), under the new Brazilian Civil Code of 2002. The sociedade limitada is the new name of the sociedade por quotas de responsabilidade limitada, and it can be organized as empresária or simples, under this new code, roughly corresponding to the form types of comercial (“commercial”) and civil (“non commercial”) of the Commercial Code. A new law in Brazil has made it legal to obtain an LLC by a sole-proprietor called Empresa Individual de Responsabilidade Limitada (Eireli for short). The main requirement is capital of 62,200 reais (US$35,250).
Bulgarian legislation contemplates LLCs as Дружество с ограничена отговорност (Druzhestvo s ogranichena otgovornost; Partnership with limited liability). Companies working under this structure append the abbreviation ООД (OOD) to their name. In case of an LLC with individual owner it is contemplated as Еднолично дружество с ограничена отговорност (Ednolichno druzhestvo s ogranichena otgovornost; One-man/ Single-member partnership with limited liability) and abbreviated as ЕООД (EOOD).
Chilean law contemplates a certain form of LLC known as "Sociedad de Responsabilidad Limitada" (Limited Liability Association). Also (LLC) These companies are regulated by law N° 3.918. Among their most important characteristics we can say that:
- They can pursue a commercial or non-commercial purpose (Sociedad Comercial de Responsabilidad Limitada / Sociedad Civil de Responsabilidad Limitada). - They must be formed by two or more partners and can hold up to a maximum of fifty. - Their equity is divided into "cuotas" (not shares) each one of which represents a percentage of the company. - They can be managed by one or more managers (external if need be), or by a board of directors. - Their by-laws can't be modified, nor their partners be changed, without the consent of all the other partners. - In tax considerations, they differ from the LLC's because they pay a corporate tax for their income, amount that can be deducted by their owners as a credit against the taxes they pay.
Chilean law also contemplates a very special kind of individual owner LLC called Empresa Individual de Responsabilidad Limitada (Limited Liability Individual Company), which uses the E.I.R.L. abbreviation.
Colombian legislation contemplates a very similar structure as mentioned above in the Chilean case. The Ltda. abbreviation is also used in Colombia.
In Croatia, a private limited liability company is termed društvo s ograničenom odgovornošću (literal: limited liability company), abbreviated d.o.o.. A public limited liability company is termed a dioničko društvo (literal: joint stock company) abbreviated d.d..
Czech legislation contemplates LLCs as společnost s ručením omezeným (s.r.o. or spol. s r.o.). An s.r.o. is not technically comparable to an LLC because the profits are still subject to double taxation. Czech law does not offer a possibility to start up a limited company without the possibility of avoiding double taxation. The minimum start-up capital for an s.r.o. is CZK 200,000 (approximately US$ 11,000).
Dominican Republic legislation contemplates LLCs as Sociedad de Responsabilidad Limitada, also known by their abbreviation S.R.L.;; S.R.L.s award limited liability to their members up to their contribution in the company (i.e., contribution of capital). This type of company began after the law number 479 of the year 2008.
In Estonia, a limited liability company is referred to as osaühing (OÜ). The type of entity is also required to be identified in the name.
Although not an exact equivalent, the Finnish version of the LLC is the Oy (osakeyhtiö) or in Swedish Ab (aktiebolag). An Oy is taxed as a corporation. The minimum capital required by law is €2,500.
S.A.R.L. or Société à Responsabilité Limitée is close to German GmbH. It was in law since 1925.
Because of its hybrid characteristics it is very difficult to determine the German equivalent. On one hand it is possible to consider it as a kind of Gesellschaft mit beschränkter Haftung (GmbH) because it has aspects of a corporation; on the other hand it could be considered to be a kind of Kommanditgesellschaft (KG), which is the German equivalent of a limited partnership. Based on the literal translation of the word “company”, an LLC should be considered to be a kind of KG without any liable partner. For the purpose of taxation, the Bundesfinanzministerium (German Federal Ministry of Finance) gives detailed guidelines of the circumstances under which an LLC is to be considered to be a “corporation” or as a “limited partnership”. It is useful to note, however, that the original LLC statutes of Wyoming and other US states were more or less explicitly modeled after the GmbH.
In Hong Kong the Limited Company is the most commonly incorporated type of company  and bears the characteristics of a Limited Liability Company. The core characteristics of a Hong Kong Limited Company include: i) it requires a minimum of one shareholder and one director (can be the same person), ii) a Hong Kong company requires a company secretary resident in HK, iii) foreign ownership is allowed, iv) company shareholders have limited liability and v) the company must have registered HK address. Entrepreneurs who register a company in Hong Kong can choose a Hong Kong offshore company. This company structure is basically a HK Limited Company but all business is conducted outside of Hong Kong. The advantage of this structure is that all business income that is sourced outside of Hong Kong is tax exempt.
Hungarian legislation contemplates LLCs as Korlátolt felelősségű társaság. Companies working under this structure append the abbreviation Kft. to their name. Hungarian LLCs were previously required to have a 3million HUF (Hungarian Forint) (approx. 16k USD) starting capital. This amount has been recently reduced and currently (in 2009) the minimum starting capital is 500k HUF (approx. 2.7k USD). The time of formation by the new electronic formation option has been reduced from 2 weeks to 2 hours, additional cost of formation is around 100k HUF (approx. 540 USD). Kft.s can be formed by the cooperation of lawyers. The Hungarian Kft. is the most common form of doing business in Hungary. As being part of the European Union (EU), Hungarian Kft.s can now obtain an EU VAT registration number for doing business across the EU. The Hungarian EU-VAT reg.number starts with "HU". This way the existence of the subject company, VAT issues and the cross-check is available on the common EU website for companies.
According to Icelandic legislation, there are two types of LLC forms, private and public held limited liability forms. Private LLC is abbreviated "Ehf." The minimum capital of 500,000 Icelandic krónas (kr.). Public LLC is abbreviated "Hf." with minimum capital of 2,000,000 kr.
In India, LLCs are known as Limited Liability Partnerships (LLP). There is no minimum capital requirement.
In India, companies are governed and registered under the Companies Act, 1956. New enactment Limited Liability Partnership Act, 2008 is passed for taking care of smaller firms. Under the CA1956, every state has one office of Registrar of Companies under this act. The group of people as prescribed by the act sign together the document Memorandum & Articles of Association and submit to the registrar along with the fees. The Registrar after checking the documents, registers the Company and allocates the Corporate ID number. Since 2007, the registration is done online and payment of fees is accepted online. Institute of Company Secretaries of India, a statutory body appointed under this act, registers charter member for rendering the services under this act, to the corporate. Then Company can apply for PAN card (registration under Income Tax Act, 1961), bank account, apply for issue of shares (for public Companies), or apply for loan to the banks and FIs.
The company must include "Limited" (for public companies) or "Private Limited" (for private companies) in its name. The companies registered under section 25 of this act are non-profit companies.
The Italian Civil Code, approved in 1942 and as amended by the Government Act 6/2003 and furthers modifications, mainly provides three forms of limited liability company:
Companies append the corresponding abbreviation to their company names.
Japan passed legislation in 2006 creating a new type of business organization, godo kaisha(J-LLC), a close variant of the American LLC. Japanese Tax authority does not consider J-LLC (Godo-Kaisha) a pass-through entity, but as a taxable entity.
In Latvia, a limited liability company is referred to as Sabiedrība ar Ierobežotu Atbildību. Abbreviation SIA is usually added before the company name. SIAs are recorded in a public register called Register of Enterprises (UR).
S.A.R.L. or Société à Responsabilité Limitée is close to German GmbH.
Macedonian legislation contemplates LLCs as Drushtvo so Ogranicena Odgovornost. Companies working under this structure append the abbreviation d.o.o. or "д.о.о" to their name.
Mexican legislation contemplates LLCs as Sociedades de Responsabilidad Limitada, also known for their abbreviation "S. de R.L.". S. de R.L.'s award limited liability to its members up to their contribution in the company (i.e. contribution of capital) and also act as pass-through or flow-through entities whereby profits are "passed-through" to its members, avoiding double taxation. This type of company is widely used by foreign investors in Mexico because of its "pass-through" modality and its "check the box" capability under the IRC (Internal Revenue Code of the U.S.).
Moldovan legislation contemplates LLCs as Societate cu Răspundere Limitată, abbreviated "S.R.L.", and are regulated member(s)-founder(s), and other non-founder members, minimum one member-founder and maximum total of 50 members, at least one of them must be the founder of the company, but all of the 50 could be also founders.
In the Netherlands, the equivalent to an LLC is a Besloten Vennootschap. Its name always starts or ends with the letters BV. Minimum capital of a BV is €18,000, normally deposited in a Dutch bank. BVs are taxed on profits, but neither on royalty income, nor on capital. Audits are only required if two out of three conditions exist: 1. revenue greater than €8.8M, 2. assets are greater than €4.4M, 3. more than 50 employees in the Netherlands.
In Norway, the closest to an LLC is an Aksjeselskap. However, this type of entity does not have an option to elect for pass-through taxation such as an LLC in e.g. the United States. This means that both the profits of the company and the dividends from the company are taxed. Its name always starts or ends with the abbreviation AS or ASA. Minimum capital of an AS is 30,000 NOK (from 1 January 2012).
There is no direct equivalent of an LLC in Peru, but some similar corporate forms include:
The capital for any of the above entities is freely determined by its statutes. There is no minimum requirement except for entities with certain types of activities, mainly in the financial markets, and then irrespective of their type.
In Poland, a limited liability company is referred to literally as “company with limited liability” (Spółka z ograniczoną odpowiedzialnością, abbreviated as Sp. z o.o.).
The minimum start capital is 5,000 PLN (since 2009; until then, 50,000 PLN).
In Portugal, LLCs are called "Sociedades de Responsabilidade Limitada", that is, “company of limited responsibility”, usually abbreviated Lda.. They are tax subject, and company shares cannot be sold in a public market, since 2006 the transference of them is not required to be done in the presence of a civil law notary, except if the company owns buildings, in the same way other major properties have to be sold. Nonetheless, the responsibility of the partners is limited to the capital share they hold, and the minimum capital required by law for a Lda. of just € 1.
Romania recognizes the limited liability company since 1990 under the name of societate cu răspundere limitată (S.R.L.), in which the owners are personally liable for the company obligations within the limit of their contribution to social capital. The minimum start capital is 200 RON which currently amounts to less than €50
In Russia and certain other former Soviet countries, an entity with a somewhat similar structure is known as Общество с ограниченной ответственностью (lit., “company with limited liability”), usually abbreviated OOO, or in some CIS countries as OсOO.
Although a Russian limited liability company shares the same name with an American LLC, it is different in many ways. Most importantly, a Russian LLC is not tax transparent: the company is taxed at the corporate level, and then, upon distribution of dividends, shareholders pay income tax (personal or corporate).
A limited liability company is the most popular form of legal undertaking in Russia for simple shareholding structures.
The minimum capital required is 10,000 Russian rubles.
Serbian legislation contemplates LLCs as društvo sa ograničenom odgovornošću. Companies working under this structure append the abbreviation d.o.o. or DOO to their name same as in Croatia. As in the Czech Republic, a d.o.o. is not technically comparable to an LLC because the profits are still subject to double taxation.
In Slovakia, the law contemplates spoločnosť s ručením obmedzeným (abbr. spol. s r. o.) or as the rough equivalent of a limited liability company. From one to 50 associates can found it through a founding agreement with minimum capital of €5000, minimum €750 per person, in money or other property. (§ 105 and following of Act. No 513/1991 Coll. - Commercial Code as amended.)
Slovenian legislation contemplates LLCs as družba z omejeno odgovornostjo. Companies working under this structure append the abbreviation d. o. o. to their name. The minimum required starting capital for a d. o. o. is €7,500. Due to the high cost and complicated bookkeeping of a real corporation, this is a more widespread form.
In Spain, LLCs are called Sociedad de responsabilidad limitada, that is, “company of limited responsibility”, usually abbreviated S.L. They are tax subject, and company shares cannot be sold in a public market, the transference of them having to be done compulsorily in the presence of a civil law notary, in the same way other major properties have to be sold. Nonetheless, the responsibility of the partners is limited to the capital share they hold, and the minimum capital required by law for a S.L. is at least €3,000.
Sweden has no equivalent of an LLC. The closest is the Swedish AB (aktiebolag), though a Swedish AB is a tax subject and is more similar to a US C Corporation than an LLC. The minimum capital required by law for a minimum at SEK 50,000. for a private AB and SEK 500,000 for a public AB.
Swiss Limited Liability Company: The terms for this kind of company used in the three official languages of the Swiss Confederation are as follows: In German Gesellschaft mit beschränkter Haftung (abbreviation: GmbH), in French Société à responsabilité limitée (abbreviation: S.à r.l. or SARL) and in Italian Società a Garanzia Limitata (abbreviation: SaGL). A Swiss LLC is similar to a LLC with respect to various matters, including the following: Members may also be natural persons, corporations, partnerships or other LLCs, the liability of a member of a Swiss LLC to pay for the LLC's obligations is limited to its capital contribution, a Swiss LLC may be either member-managed or manager-managed, and, unless otherwise provided for in the operating agreement, the members’ right to control or manage a Swiss LLC is proportionate to their individual membership interest. The membership interests in a Swiss LLC have to be registered and, thus, they may only be issued in the name of a member but not to the bearer.
Swiss Corporation (in English common law context usually translated as company limited by shares): The terms for this kind of company used in the three official languages of the Swiss Confederation are as follows: In German Aktiengesellschaft (abbreviation: AG), in French Société Anonyme (abbreviation: SA) and in Italian Società Anonima (abbreviation: SA). A Swiss corporation is with respect to various matters different to a LLC (including a Swiss LLC): Most important is that a Swiss corporation may, neither by default nor by exercising any respective option provided by the Swiss law, be member-managed like a LLC, as the respective mandatory provisions of Swiss law provide that the board of directors has certain non-transferable duties. Furthermore, the shares of a Swiss corporation may also be issued to the bearer (bearer shares) and, thus, not only in the name of a holder (registered shares), which, however, applies to the membership interests in a Swiss LLC, which may only be registered.
In Tajikistan same as in Russia, an entity with a somewhat similar structure is known as "Ҷамъияти дорои масъулияти маҳдуд", abbreviated as "ҶДММ".
In Turkey, "Limited Şirket (Ltd. Şti.)" corresponds to Limited Liability Company.
This type of entity exists in this country since the 1990s. In Ukrainian, it is spelled "Товариство з обмеженою відповідальністю" (abbreviated – TОВ, TзОВ), in transliteration "Tovarystvo z Obmezhenoyu Vidpovidalnistyu," that is, “company of limited liability”.
This type of entity exists in the U.A.E. states as a widely accepted way to do business and is referred as L.L.C.
The new form of limited liability partnership (LLP), created in 2000, is similar to a US LLC in being tax neutral: member partners are taxed at the partner level, but the LLP itself pays no tax. It is treated as a body corporate for all other purposes including VAT. Otherwise, all companies, including limited companies and US LLCs, are treated as bodies corporate subject to United Kingdom corporation tax if the profits of the entity belong to the entity and not to its members.
A Limited Liability Company (LLC) is a relatively new business structure authorized by state statute. The LLC is chiefly inspired by the GmbH, a type of business organization in Germany, and by limitadas, a type of business organization available in many Latin American countries.
In the United States, the first limited liability company act appeared in Wyoming in 1977 as special interest[clarification needed] legislation for an oil company. In 1980, the Internal Revenue Service issued a private letter ruling to an LLC formed under Wyoming LLC Act indicating that the IRS would treat the LLC as a partnership for federal tax purposes. However, later that year, the IRS proposed regulations that would deny partnership classification to any business entity in which no member bore personal responsibility for the entity’s liabilities. In 1982, Florida adopted an LLC act modeled on Wyoming’s LLC Act. Due to uncertainty over the tax treatment of LLCs, no other states introduced LLC legislation until after 1988. In 1988, the IRS issued a revenue ruling stating that it would treat a Wyoming-style LLC as a partnership for tax purposes. By 1996, nearly every state had enacted an LLC statute. The National Conference of Commissioners on Uniform State Laws adopted the Uniform Limited Liability Company Act in 1996 and revised it in 2006.
A potential disadvantage specific to the United States is that LLCs are not considered to be corporations for the purposes of federal civil procedure; they are instead treated as partnerships. This affects the applicability of diversity jurisdiction in cases involving LLCs, barring application of diversity jurisdiction when even one member of the LLC is a citizen of the same state as even one of the opposing parties. Should one member of an LLC be a citizen of a state of which one of the opposing parties is a citizen, any case between the LLC and those parties must be heard in that state's courts; corporations enjoy a more complete legal personhood that only denies diversity jurisdiction when the opposing party is a citizen of the state in which the corporation is incorporated or has its principal place of business.
AOL was set up as a LLC during its ownership by Time Warner from 2001 to 2008. There is a similar setup for BMW's American subsidiary, BMW of North America, LLC. Chrysler has been an LLC since restructuring during the auto industry bailout of 2009, with a majority stake held by Fiat S.p.A..
|This article includes a list of references, but its sources remain unclear because it has insufficient inline citations. (May 2009)|