California LLC Limited Liability Company
To set up a California LLC, otherwise known as a California Limited Liability Company, you must register in California by filing a written statement with the Secretary of State (along with a filing fee) setting forth the name and principal office address, name and address of its agent for service of process in California, a brief statement of the business, and a statement that the partnership is registering as a Limited Liability Company. An annual tax is thereafter imposed on LLCs equal to the minimum franchise tax imposed on California corporations (i.e. $800).
- Two members required: Unlike a corporation, which can have as few as one shareholder, most states require that an LLC consist of two or more members (owners). Recently, however, more states are allowing single -member LLCs. Please note, the IRS may treat a single-person LLC differently than an LLC with more than one member.
- Separate legal entity: Like limited partnerships and corporations, an LLC is recognized as a separate legal entity from its “members.”
- Limited liability: Ordinarily, only the LLC is responsible for the company’s debts, thus shielding the members from personal liability. However, there are some exceptions where individual members may be held liable.
- Guarantor liability: Where a LLC member has personally guaranteed the obligations of the LLC, he or she will be liable. For example, where an LLC is relatively new and has no credit history, a prospective landlord about to lease office space to the LLC will most likely require a personal guarantee from the LLC members before executing such a lease.
- Alter Ego liability: Very similar to the judicial doctrine applied to corporations where a court may hold the individual shareholders liable where the business entity is merely the “alter ego” of its shareholders, a member of a LLC may also be held liable for the LLC’s debts if the court imposes its “alter ego liability” doctrine. (Please note, however, that although a corporation’s failure to hold shareholder or director meetings may subject the corporation to alter ego liability, this is not the case for LLCs in California. An LLC’s failure to hold meetings of members or managers is not usually considered grounds for imposing the alter ego doctrine where the LLC’s Articles of Organization or Operating Agreement do not expressly require such meetings.
- Voting interest: Ordinarily, voting interest directly corresponds to interest in profits, unless the articles of organization or operating agreement provide otherwise.
- Transferability: No one can become a member of a LLC (either by transfer of an existing membership or the issuance of a new one) without the consent of members having a majority in interest (excluding the person acquiring the membership interest) unless the articles of organization provide otherwise.
- Duration: Although many states now allow a LLC to have a perpetual existence, LLCs traditionally were required to specify the date on which the LLC’s existence would end. In most cases, unless otherwise provided in the articles of organization or a written operating agreement, a LLC is dissolved at the death, withdrawal, resignation, expulsion, or bankruptcy of a member (unless within 90 days a majority in both the profits and capital interests vote to continue the LLC).
- Formalities: The existence of an LLC begins upon the filing of the Articles of Organization with the Secretary of State. The articles must be on the form prescribed by the Secretary of State. Among the required information on the form is the latest date at which the LLC is to dissolve and a statement as to whether the LLC will be managed by one manager, more than one manager, or the members.
- Operating Agreement: To validly complete the formation of the LLC, members must enter into an Operating Agreement. This Operating Agreement may come into existence either before or after the filing of the Articles of Organization and may be either oral or in writing.
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