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The limited liability company (“LLC”) is the most versatile of all forms of business entity. All states, as well as many foreign jurisdictions, have adopted this form of business organization. Despite the widespread availability of the LLC, there are important differences in the laws of the various jurisdictions. These require skillful evaluation of the statutes in light of the client’s objectives, in order to make the proper selection. Equally important, yet often overlooked, are the consequences of the client’s election to have the LLC taxed as a corporation or as a partnership. One also should not overlook the rules governing the business relationships among the members. These should be handled in a well drafted Operating Agreement.
The LLC is useful in estate planning, where different classes of interest may be easily created and assist the client in business succession and gifting. The LLC may also be preferred in the real estate context, because it is does not suffer from the same limitations as do limited partnerships. For other clients, the LLC is a substitute for consolidated returns, or it is useful as an acquisition vehicle in a corporate setting. New businesses prefer the LLC because losses arising in the early years of operations pass through to the members. Mature businesses may prefer the LLC, because it allows different membership classes to be created that permit performance to be rewarded and accommodate business succession. Although the LLC may be a suitable choice in each of these examples, the selection of jurisdiction, the contents of the operating agreement, and the need for tax planning require the attention of skilled legal counsel to craft proper plans for each client.