Converting a Corporation to an LLC in Arkansas

If you are planning on converting a corporation to an LLC in Arkansas, here's what you need to know.

If you’re thinking of converting the legal form of your small business from a corporation to an Arkansas LLC, you should be aware of some basic facts regarding the state’s business-entity conversion process. In general, the tax consequences associated with converting from a corporation to an LLC will be complicated. Therefore, for any kind of corporation-to-LLC conversion, you should consult with an experienced tax adviser.

Variable Elements of Conversions

First, let’s be clear that there is not just one kind of corporation, one tax status for an LLC, or one kind of conversion. On the contrary, there are:

  • C corporations and S corporations
  • for-profit corporations and non-profit corporations
  • corporations formed under Arkansas law and corporations formed under other states’ laws
  • multi-member LLCs and single-member LLCs
  • LLCs taxed as partnerships, LLCs taxed as corporations, and LLCs taxed as “disregarded entities;” and
  • multiple methods for converting your business—including statutory conversions, statutory mergers, and nonstatutory conversions

We won’t be looking at every possible combination of these variables. Instead, we’ll try to keep matters as simple as possible, focusing mainly on the general rules of Arkansas’s business-entity conversion statute as it applies to closely-held, for-profit Arkansas corporations converting to multi-member LLCs.

Arkansas’s Conversion Statute

In Arkansas, you can use a relatively new, simplified procedure that allows you to convert your business from a corporation to an LLC largely by filing a few basic documents with the Secretary of State. This procedure, technically known as “statutory conversion,” automatically transfers your corporation’s assets and liabilities to the new LLC. Unlike other methods of conversion, only one business entity is involved: You do not need to separately form an LLC before the conversion can occur. (As the conversion statute puts it, the converted business “is for all purposes the same entity that existed before the conversion.”) The conversion procedure is codified primarily in Sections 4-27-1101 through 4-27-1105 of the Arkansas Code (A.C.A.).

To convert your Arkansas corporation to an Arkansas LLC, you need to:

  • have your corporation’s board of directors recommend a plan of conversion to the shareholders
  • get the corporation’s shareholders to approve the plan of conversion; and
  • file articles of conversion and articles of organization with the Secretary of State.

The plan of conversion contains key information about the conversion, including such things as:

  • the name and legal form of your business before conversion (corporation)
  • the name and legal form of your business after conversion (limited liability company)
  • the “terms and conditions” of the conversion, including the basis for converting corporate shares into LLC membership interests; and
  • the LLC’s “organizational documents” (articles of organization and operating agreement).

By default, the Arkansas conversion statute requires approval of the plan of conversion by a simple majority of shares in each separate voting group. However, the statute also allows for the possibility that a greater vote is required, for example under the articles of incorporation. For more details, check A.C.A. § 4-27-1103(d).

The articles of conversion contain some of the same basic information such as the plan of conversion, as well as a few other items. More specifically, they should include:

  • the name and legal form of your business before conversion (corporation)
  • the jurisdiction where your business was incorporated (Arkansas)
  • the name and legal form of your business after conversion (limited liability company)
  • the jurisdiction where your new LLC will be organized (Arkansas)
  • certain statements that the conversion has been approved according to the relevant laws
  • a statement that the plan of conversion is either attached to the articles of conversion, or is on file at a specified business office
  • the effective date of the conversion; and
  • the signature of an authorized individual.

In addition, the articles of conversion either must include a copy of the plan of conversion, or else a statement that the plan of conversion is on file at a specified business office and will be furnished on request and without cost to any corporation shareholder. A blank articles of conversion form is available from the Secretary of State.

The articles of organization will contain basic information about your new LLC. This includes things like the LLC’s name and principal business address, the name and address of its registered agent, a statement regarding managers who manage the business (if any), and one or more authorized signatures. A blank articles of organization form, which also includes a form relating to annual franchise tax reporting, is available online.

The plan of conversion, articles of conversion, and articles of organization all may appear straightforward; however, keep in mind that you also need to prepare an operating agreement as part of the plan of conversion. Moreover, converting your particular business may involve unexpected complications. Therefore, it may be advisable to work with a business attorney to draft the required documents and otherwise complete the conversion process.

Your total filing fees for this process likely will be at least $75, which includes filing fees for both the articles of conversion ($25) and the articles of organization ($50).

Finally, be aware that Arkansas’s conversion statute states not only that all of the corporation’s property, as well as all of its debts, liabilities, and other obligations, are automatically transferred to the new LLC, but also that any legal actions against the corporation may continue “as if the conversion had not occurred.” For more information, check A.C.A. § 4-27-1105.

Additional Steps

Apart from the foregoing steps, you will also need to take care of all the tasks normally associated with creating and running a new LLC, such as:

  • notifying customers, clients, suppliers, and others with whom your business has relationships of its new status as an LLC
  • holding required LLC meetings (such as member or manager meetings)
  • keeping proper minutes of LLC meetings
  • keeping LLC finances separate from personal finances
  • using the official LLC name on your business documents; and
  • filing the required annual franchise tax reports with the state.

Following the proper LLC formalities is important for maintaining the limited liability status of your business and ensuring certain potential tax benefits. For a more complete discussion of the steps involved in forming and running an LLC, consult Your Limited Liability Company: An Operating Manual, by Anthony Mancuso (Nolo).

One other key step in the conversion process is to make sure that no business contracts or agreements, such as bank documents, leases, licenses, and insurance, will be nullified by your business’s conversion.

Tax Consequences

A key point to keep in mind is that converting a C corporation to an LLC taxed as a partnership often results in a large tax bill. This is largely because the IRS considers this kind of conversion to be a liquidation of the corporation for which the corporation will owe tax, on top of which the corporation’s stockholders will also be taxed personally on the corporate assets assumed to be distributed to them; in other words, there is double taxation.

Converting a corporation to an LLC that will continue to be taxed as a corporation generally does not have the same degree of adverse tax consequences as when converting to an LLC taxed as a partnership, and may even be largely tax-free. However, as this type of conversion will not change the basic elements of how your business will be taxed going forward, you should investigate closely how it would benefit the business, other than by providing a more flexible management structure. Also, in order for your LLC to continue to be taxed as a corporation, you must file a special election form with the IRS.

Converting from an S corporation to an LLC is fundamentally different from converting from a C corporation, because an S corporation has only one level of taxation; as a rule, an S corporation itself does not pay tax, only its shareholders do. Therefore, the tax consequences for this type of conversion are often more limited than conversions from a C corporation.

In general, the tax consequences associated with converting from a corporation to an LLC will be complicated. Therefore, for any kind of corporation-to-LLC conversion, you should consult with an experienced tax adviser.

Additional Information

For further guidance on converting from a corporation to an LLC, check Corporations and S Corporations vs. LLCs. Also, while they are not a substitute for expert tax advice, you should also consider looking at Tax Savvy for Small Business, by Frederick Daily (Nolo), and Legal Guide for Starting & Running a Small Business, by Fred Steingold (Nolo). For information on conversion rules in other states, check Nolo’s 50-State Guide to Converting a Corporation to an LLC.

December 2012

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