The limited liability company (aka L.L.C. or LLC) is the strongest asset protection devise for your business replacing the sub chapter “S” corporation. The LLC offers limited liability to the owners of a business and, additionally, the limited liability company is approved in all 50 states.
The LLC is similar to a corporation and sometimes has been mistakenly referred as the limited liability corporation. In the LLC, the individuals are called members and the LLC is most advantageous to smaller companies with a smaller number of members. In cases where the LLC has only one member the LLC may be regarded as a disregarded entity whereby the sole member is viewed as the entity performing the operations of the LLC. This contrasts a corporation owned by a single individual whereby the corporation is viewed as the entity performing the operations.
The limited liability company with multiple members avoids double taxation because the members are partners for taxation purposes. The IRS Form 1065 and Schedule SE (i.e. Self-Employment Tax) are used with the LLC entity. For tax purposes, the LLC in a partnership formation reports its income and deductions via each members’ income tax return.
WHY CHOOSE THE LLC FOR ASSET PROTECTION?
Courts and clever predators with their contingent-fee lawyers have significantly eroded the benefits and protection of corporate entities, allowing for little or no asset protection against employees, shareholders, officers, or directors. The limited liability company has become the “entity of choice” for all new business structures. The sub chapter “S” corporation has now become the white elephant.
LIMITED LIABILITY COMPANY’S FINANCIAL BENEFIT
There is a significant financial benefit to establishing a limited liability company for your business. Your predatory creditor’s sole remedy is the “charging order.” Similar to partnerships, the charging order can only be against LLC member(s) and not the LLC. The charging order is obtained subsequent to your creditor obtaining a judgment against you for monetary damages and other frivolous charges. Your creditor cannot, and is precluded by law, to step into your shoes as an LLC member and take over the financial affairs of your LLC. This is, in and by itself, the limited liability company’s most significant financial benefit.
In all cases, after you plead with your creditor, “Please, please, please, do NOT place a charging order against me because it’ll have the most detrimental affect on how I deal with my existing clients, banks and other businesses,” your creditor will turn around and slap you with a charging order. What you creditor does not realize is that he just gave you a major gift. Thanks in largely due to the drafters of the Uniform Limited Partnership Act.
The charging order means that your creditor has a right to “all your capital distributions.” So when will you have a capital distribution to pay your creditor? The answer is never. You are allowed to take a salary, to joint venture, to borrow money from the limited liability company but you will never take a capital distribution wherein you will pay your creditor. You have just become your creditor’s and their contingent-fee, gold-digging lawyer’s worst nightmare.
LIMITED LIABILITY COMPANY TAX ADVANTAGE
The LLC has a significant tax advantage. Someone must pay the taxes so the IRS declares. According to the IRS, in revenue ruling (77-137) it states that someone must pay the taxes. Since the person holding the charging order will receive the “K-1”, he must pay the taxes on the income generated by the LLC even though your creditor never receives any actual cash from the business.
The creditor saddled by the charging order is treated as a substituted limited partner for tax purposes, thanks to the IRS, and will suffer the tax consequences without capacity to force payment, dissolution or distribution. Do you think that your creditor will want to settle? Please note the “K-1” is the yearly income tax statement to be included in recipient’s taxable income for the year similar to your mutual fund’s form 1099.
The shocking news is that your creditor will be obligated to pay the taxes for you. Every 6 months, send your creditor a letter on how well your business is doing and that you want to make sure that he prepares himself to pay the taxes. At the end of the taxable year, you send your creditor a copy of an additional letter along with the K-1, addressed to the IRS, requesting an audit of your creditor because you want to be tax compliant and that you want to make sure that all taxes have been timely paid and are up-to-date. Do you still have doubts that your creditor will want to settle?
When you combine the limited liability company’s tax benefit and the protection of the charging order with a surefire asset protection system of an irrevocable trust such as the Ultra Trust you will receive a financial asset protection fortress against your creditors and other contingent-fee based lawyers. So the next time there are any pending frivolous lawsuits you can relax and sleep soundly at night knowing your business assets are well protected.