If you’re thinking of converting the legal form of your small business from a corporation to a North Carolina 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 North Carolina 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 North Carolina’s business-entity conversion statute as it applies to closely-held, for-profit North Carolina corporations converting to multi-member LLCs.
North Carolina’s Conversion Statute
In North Carolina, 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. By the same token, there is also no need to dissolve your corporation. Instead, under North Carolina’s conversion statute, your business “continues in existence as the resulting domestic limited liability company.”
The conversion procedure is codified primarily in Sections 55-11A-10 through 55-11A-13 of the North Carolina General Statutes (N.C.G.S.), which are sections of the state’s Business Corporation Act. Note that many of the same basic conversion rules are repeated in the state’s LLC Act at N.C.G.S. §§ 57C-9A-01 through 57C-9A-04.
To convert your North Carolina corporation to a North Carolina 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, as a single document, articles of organization that include articles of conversion with the Secretary of State.
The plan of conversion contains key information about the conversion, including such things as:
- the name of your corporation
- the name of your new LLC
- the legal “type” of your business after conversion (limited liability company)
- the state whose laws will govern your new LLC (North Carolina)
- the “terms and conditions” of the conversion; and
- the basis for converting corporate shares into LLC membership interests.
By default, North Carolina’s conversion statute requires approval of the plan of conversion by a simple majority of the shareholders in each voting group entitled to vote. However, the statute also allows for the possibility that a greater vote is required by your corporation’s articles of incorporation or bylaws. Also, under certain circumstances, a conversion should be treated as a merger for voting purposes (a “merger” is legally distinct from a “conversion”). For more details, check N.C.G.S. §§ 55-11A-11(c) through 55-11A-11(f).
The articles of conversion, which you need to include with you articles of organization for the LLC, contain only a few items, including much of the same information as the plan of conversion. More specifically, the articles of conversion must include:
- the name of your corporation
- the name of your new LLC
- the legal “type” of your business after conversion
- the state whose laws will govern your new LLC; and
- a statement that the plan of conversion has been approved by the corporation as required by North Carolina law.
The articles of organization for your new LLC, which will include the articles of conversion, will also contain information such as the following:
- a statement regarding which state’s laws govern your corporation (North Carolina)
- the legal “type” of your business before conversion (domestic corporation)
- the duration of your new LLC, if not perpetual
- the name and address of each person signing the articles of organization, including an indication of whether each is a member, organizer, or both
- the street address, including county, of the new LLC’s initial registered office
- the mailing address for the new LLC, if different from the registered office address
- the name of the initial registered agent
- an indication of whether the new LLC has a principal office, and, if so, its address
- an indication of whether the new LLC will be member-managed or manager-managed
- the effective date for the articles of organization and articles of conversion, if other than the filing date; and
- an authorized signature.
For your convenience, the Secretary of State publishes a blank form that combines, in a single document, the articles of conversion and articles of organization. You can download the form (L-01A Articles of Organization, LLC (Conversion of Business Entity)) from this Secretary of State webpage.
The plan of conversion, articles of conversion, and articles of organization all may appear straightforward. However, converting your particular business may involve unexpected complications. Therefore, you should strongly consider working with a business attorney to draft the required documents and otherwise complete the conversion process.
Your minimum filing fee for this process likely will be $125, which is the cost for filing the articles of organization including the articles of conversion.
Finally, be aware that North Carolina’s conversion statute states not only that all of your corporation’s property, as well as all of its liabilities, are automatically transferred to the new LLC, but also that any legal actions against the business may continue “as if the conversion did not occur.” For more information, check N.C.G.S. § 55-11A-13.
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 report 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.
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.