If you’re thinking of converting the legal form of your small business from a corporation to a North Dakota 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 Dakota 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 Dakota’s business-entity conversion statute as it applies to closely-held, for-profit North Dakota corporations converting to multi-member LLCs.
North Dakota’s Conversion Statute
In North Dakota, 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. The conversion procedure is codified primarily in Sections 10-19.1-104.1 through 10-19.1-104.6 of the North Dakota Century Code (N.D. Cent. Code).
To convert your North Dakota corporation to a North Dakota LLC, you need to:
- have your corporation’s board of directors approve a plan of conversion
- 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 form of your business before conversion (form = business corporation)
- the name and form of your business after conversion (form = business limited liability company)
- the “terms and conditions” of the conversion
- the basis for converting corporate shares into LLC membership interests or money; and
- the articles of organization and operating agreement for your new LLC.
Unlike many other states’ conversion statutes, the North Dakota statute does not state how many shares must vote in favor of the plan of conversion in order for it to be approved. While other sections of the North Dakota’s Business Corporation Act may provide greater specificity on voting requirements (such as that a simple majority of shares is required for approval), and your corporation’s articles of incorporation or bylaws may also contain guidance, ultimately you should consider consulting with a lawyer familiar with the laws in North Dakota. (The conversion statute’s rules for approving the plan of conversion, such as they are, are found at N.D. Cent. Code § 10-19.1-104.3(1)(a).)
The articles of conversion contain some of the same information as the plan of conversion, as well as a few other items. More specifically, they must include:
- the name of your corporation immediately prior to conversion
- the name of your new LLC
- the form of your business after conversion
- the jurisdiction of the governing statute for your new LLC (North Dakota)
- a statement that the plan of conversion has been approved by your corporation as required in N.D. Cent. Code § 10-19.1-104.3
- a statement that the plan of conversion has been approved as required under the North Dakota Limited Liability Company Act
- a copy of the plan of conversion (without the articles of organization or operating agreement); and
- a copy of your new LLC’s articles of organization.
The articles of organization for your new LLC, which must be filed with the articles of conversion, will include information such as the following:
- the name of your new LLC
- the name of a commercial or noncommercial registered agent in North Dakota
- if your LLC will have a noncommercial registered agent, that agent’s complete North Dakota address information, including a street address
- the effective date for the articles of organization
- the duration of your new LLC (which may be perpetual)
- your new LLC’s purpose (which may simply be “general business purposes”)
- the name and complete address, including street address, of each LLC organizer; and
- one or more authorized signatures.
For your convenience, the Secretary of State publishes a blank articles of organization form.
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. For example, as mentioned above, there may be questions regarding the exact voting rules for approving the conversion. Therefore, it may be advisable to work with a business attorney to draft the required documents and otherwise complete the conversion process.
Finally, be aware that North Dakota’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 the business may continue “as if the conversion has not occurred.” For more information, check N.D. Cent. Code § 10-19.1-104.6.
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.
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.
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.