CREATING AN LLC FOR YOUR REAL ESTATE BUSINESS

June 14, 2012

 

As of April 1, 1997, all fifty states have adopted the Limited Liability Company or “LLC.” The LLC is relatively new to the U.S., and most states have adopted LLC laws only within the past few years. Essentially, the LLC is a cross between a corporation and a partnership, with all of the bells and whistles of both.

 

The IRS Has Cleared the Way


Most conservative attorneys and CPAs (including myself) shied away from LLCs because it was not clear how the IRS would classify such an entity. However, the new IRS rulings make it clear that an LLC will be treated as a partnership, so long as it has at least two members. A single-member LLC will be “disregarded” for tax purposes. This means a single member LLC is still valid under state law (and thus affords lawsuit protection), but no additional tax reporting is necessary at the federal level.

 

Lawsuit Protection


The LLC, like a corporation, provides “lawsuit protection” for its owners. The owners (called “members”) of an LLC are not personally liable for debts or liabilities of the company. Thus, an LLC which holds real estate will protect its owners from personal liability for lawsuits. In addition, a foreclosure against the company will not create personal liability for the members (unless, of course, the members signed personally on the loan).

 

Favorable Tax Treatment


Like a partnership, the LLC provides “pass-through” tax treatment. This means that the company is not taxed on its profits; all profits of the company “pass-through” to its members. A regular corporation (called a “C” corporation) is taxed at the corporate level. The shareholders are taxed again on the income they receive from the company.

 

Asset Protection


For many years, the “Family” Limited Partnership was the preferred vehicle for estate planning and creditor protection. The popularity of the FLP was that a creditor could not take partnership property or attach a partner’s interest. This limited remedy would force a creditor to settle with a partner for pennies on the dollar.

 

The problem with limited partnerships for holding real estate is that the general partner has personal liability. This problem was often solved by using a general partner which is a corporation. This, of course, creates added expense and paperwork. An LLC afford its members the same creditor protection as a limited partnership, but no member has personal liability.

 

Another interesting feature of an LLC is that the IRS does not consider a single member LLC to exist for tax purposes. Thus, the single member still has lawsuit protection in state court, but the member continues to report his rental income and expenses on schedule “e” of his personal income tax return.

 

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