If you’re thinking of converting the legal form of your small business from a corporation to a New Mexico 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 nonprofit corporations
- corporations formed under New Mexico 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 New Mexico’s business-entity conversion statute as it applies to closely-held, for-profit New Mexico corporations converting to multi-member LLCs.
New Mexico’s Conversion Statute
In New Mexico, 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 Public Regulation Commission (PRC). 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. The conversion procedure is codified primarily in Sections 53-19-59 through 53-19-63 of the New Mexico Statutes Annotated (N.M.S.A.).
To convert your New Mexico corporation to a New Mexico LLC, you need to:
- prepare an agreement of conversion
- get the corporation’s shareholders to approve the terms and conditions of the conversion; and
- file a statement regarding the conversion and articles of organization with the PRC.
Under New Mexico’s conversion statute, the agreement of conversion is described briefly and broadly as needing to state the “terms and conditions” of the conversion of “owners’ interests” (shareholders’ stock) into LLC membership interests and/or cash. See N.M.S.A. § 53-19-60(C).
By default, New Mexico’s conversion statute requires that the terms and conditions of the conversion be approved in whatever manner is specified in your corporation’s articles of incorporation, bylaws, or other relevant governing document. However, if no corporation document provides rules for approving a conversion, then approval requires the consent of all shareholders. See N.M.S.A. § 53-19-60(B).
The statement regarding the conversion must contain a few basic pieces of information regarding the conversion, including:
- a statement that your corporation was converted to an LLC
- the name of your corporation prior to its conversion
- a statement of the number of shareholder votes casts for and against conversion, including, if the vote is less than unanimous, the number or percentage required for approval according to the appropriate corporation documents; and
- a statement that your corporation’s certificate of incorporation is to be cancelled as of the effective date of the conversion.
At this time, there is no preformatted form for the conversion statement available from the PRC; you will have to draft your own.
The articles of organization for your new LLC must include:
- the name of your new LLC
- the street address of the new LLC’s initial registered office and name of initial registered agent at that address
- the street address of the new LLC’s principal place of business, if different from the registered office
- the LLC’s duration
- a statement that the new LLC is managed by a manager, if applicable; and
- a statement that the new LLC is a single-member LLC, if applicable.
The articles of organization will also need to be signed by one or more authorized individuals. For your convenience, the PRC publishes a blank articles of organization form that includes helpful instructions.
The agreement of conversion, conversion statement, and articles of organization all may appear straightforward. However, keep in mind that you need be sure about the correct voting rules for approving the conversion, and also need to draft both the agreement of conversion and the conversion statement. 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.
The filing fee for this process is $150, which includes filing of both the conversion statement and articles of organization.
Finally, be aware that New Mexico’s conversion statute states not only that all of your 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 your business may continue “as if the conversion had not occurred.” For more information, check N.M.S.A. § 53-19-61.
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; and
- using the official LLC name on your business documents.
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.
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.
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, see Nolo’s 50-State Guide to Converting a Corporation to an LLC.