Insurance & Asset Protection

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Guaranteed Payments and the Multi-Owner LLC

A small business owner has a number of withdrawal methods available when seeking to minimize the amount of vulnerable assets within the entity by withdrawing funds from the business.

Payments for Salary

A small business owner has a number of withdrawal methods available when seeking to minimize the amount of vulnerable assets within an entity by withdrawing funds from the business. One way is to take a salary from the business as compensation for services rendered. But there are some statutory restrictions on how this must be done.

Salary Tax Issues for the LLC

Small business owners have a variety of withdrawal methods available to them when attempting to minimize the amount of vulnerable assets within the business. Payment of salary is the most common method, subject to certain tax issues.

Salary Tax Issues for the Corporation

Small business owners have a variety of withdrawal methods available to them when attempting to minimize the amount of vulnerable assets within the business. Payment of salary is the most common method, subject to certain tax issues.

More Liberal Dividend Tests

Dividend distributions are a common way to withdraw funds from the business and minimize vulnerable assets within the corporation. This withdrawal method is often restricted to the earned surplus.

Balance Sheet and Earned Surplus Tests for Dividends

Small business owners have a variety of withdrawal methods available to them when attempting to minimize the amount of vulnerable assets within a business.

Dividend Distributions

A small business owner has a number of withdrawal methods available when seeking to minimize the amount of vulnerable assets within an entity by withdrawing funds from the business. One way is to distribute earnings among the owners based on their ownership interests. But there are some statutory restrictions on how this must be done.

Withdrawal Methods

A small business owner should always seek to keep at a minimum the amount of assets within the business entity vulnerable to a creditor by withdrawing funds from the business. Be sure to use formal and regular withdrawals, backed in writing.

Statutory Fraud Limits on Withdrawals for the LLC

In the case of limited liability companies (LLCs), restrictions on withdrawals imposed by state LLC statutes are usually identical to the Uniform Fraudulent Transfers Act's (UFTA) constructive fraud restrictions. This is consistent with the theme of simplicity that applies to the LLC.

Statutory Fraud Limits on Withdrawals for the Corporation

For corporations, state laws' restrictions on withdrawals usually impose the same types of constructive fraud provisions on transfers as they do when restricting limited liability companies (LLC).

Constructive Fraud Restrictions on Withdrawals

When executing a plan to regularly and continuously withdraw funds from the business, the owner must be careful not to run afoul of the restrictions on withdrawals imposed by the Uniform Fraudulent Transfers Act (UFTA).

Restrictions on Withdrawals

To limit the amount of vulnerable assets within a business that could be exposed to a creditor's claims, a business owner should have a plan to continuously and regularly withdraw funds from the entity.

Actual Fraud Restrictions on Withdrawals

When executing a plan to regularly and continuously withdraw funds from the business, the owner must be careful not to run afoul of the restrictions on withdrawals imposed by the Uniform Fraudulent Transfers Act (UFTA).

Other Formation Considerations

After establishing the business entity, the owner will have to apply to the Internal Revenue Service for an employer identification number (EIN). This is the identification number the business will use on all of its bank accounts, as well as on all of its income and employment tax filings.

Avoiding Day-to-Day Liability Risks

Traditionally, business owners have relied on how-to guides that offer instruction limited to the process of forming the business entity.

Withdrawing Funds from the Business

As we've discussed elsewhere, an owner of a limited liability company (LLC) or a corporation enjoys limited liability for the business's debts. In other words, the owner's liability is limited to the amount he invested (or promised to invest) in the business entity.

Fair Market Value

When valuing a business interest as part of a buy-sell agreement, purchase at fair market value requires that the value of the entity's goodwill be included and that the entity's recorded assets be restated to fair market value. Both of these adjustments usually require an appraisal.

Formula Approach

When valuing a business interest as part of a buy-sell agreement, calculations of book value and fair market value may not always be the best options.

Using Life Insurance in Buy-Sell Agreements

When circumstances require the owners of a business to execute a previously arranged buy-sell agreement, sufficient cash may not be available to the entity, or to its owners, to make it feasible for the purchase of a withdrawing owner's interest. Usually, if the owners and/or the entity, as the case may be, are unwilling or unable to make the purchase, the buy-sell agreement provides that the withdrawing owner is free to sell his interest to an outsider.

Valuing the Interest

In a buy-sell agreement, which is an important part of properly establishing your business entity, a method for valuing the business interests must be written into the document.

Book Value

When valuing a business interest as part of a buy-sell agreement, book value represents the allocated amount of the particular interest, as recorded in the entity's accounting records. Thus, the amount is already determined. Accordingly, book value has the advantage that a costly appraisal is unnecessary.

Understanding Default Statutory Rules

When forming a limited liability company (LLC) or corporation, care must be taken by all owners to consider all aspects of the business and put agreements in writing.

The Buy-Sell Agreement

This agreement is an important part of properly establishing your business entity in order to limit liability in your business structure.

Hiring an Agent for Service of Process

When forming a limited liability company (LLC) or corporation, every state requires that the business owner name a resident of that state (an individual or an entity) as an agent for service of process. The agent is named in the articles of organization. In addition, an entity that registers to do business in another state also must name a resident agent in its foreign registration certificate.

Drafting Operating Agreements

To take advantage of numerous asset protection strategies that limit liability in your business structure, the small business owner is most likely to form a limited liability company (LLC) or a corporation.