If you’re thinking of converting the legal form of your small business from a corporation to a South 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 South 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 South Dakota’s business-entity conversion statute as it applies to closely-held, for-profit South Dakota corporations converting to multi-member LLCs.
South Dakota’s Conversion Statute
In South 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 47-1A-901 through 47-1A-957 of the South Dakota Codified Laws (S.D. Cod. Laws).
To convert your South Dakota corporation to a South Dakota LLC, you need to:
- have your corporation’s board of directors adopt a plan of entity conversion
- get the corporation’s shareholders to approve the plan of conversion; and
- file articles of entity 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 legal “type” of your business after conversion (limited liability company)
- the “terms and conditions” of the conversion
- the manner and basis for converting corporate shares into LLC membership interests; and
- the full texts of your new LLC’s articles of organization and operating agreement.
By default, South Dakota’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 the articles of incorporation or board of directors. In addition, for articles of incorporation, bylaws, or other relevant agreements dated before July 1, 2005, if there are provisions referring to mergers but not conversions, the merger provisions will be deemed to apply to conversions. (A merger is legally distinct from a conversion.) For more details, check S.D. Cod. Laws § 47-1A-952.
The articles of entity 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
- the name of your new LLC
- the legal “type” of your business after conversion
- a statement that the plan of conversion has been duly approved by the shareholders as required by Chapter 01A of Title 47 of the South Dakota Codified Laws and your corporation’s articles of incorporation; and
- either all the provisions of the new LLC’s articles of organization, or an attached copy of those articles of organization.
At this time, the Secretary of State does not have a blank form or template for the articles of entity conversion; you will have to draft your own.
The articles of organization will include basic information about your new LLC, including:
- its name
- its duration, if other than perpetual
- its initial designated office street address, and, optionally, mailing address
- the name and South Dakota street address of its registered agent, and, optionally, the agent’s mailing address
- if the LLC has a commercial registered agent, that agent’s CRA number
- the name and address of each LLC organizer
- an indication of whether the LLC will be managed by its members or by managers
- for manager-managed LLCs, the name and street address of each initial manager
- a statement regarding whether one or more LLC members are personally liable for certain debts or obligations; and
- the signatures of the organizers.
For your convenience, the Secretary of State publishes a blank articles of organization form.
The plan of conversion, articles of entity 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 minimum filing fee for this process likely will be $150, which is the cost for filing the articles of entity conversion including the articles of organization.
South Dakota’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 your business continue “as if the conversion had not occurred.” For more information, check S.D. Cod. Laws § 47-1A-955.
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, check Nolo’s 50-State Guide to Converting a Corporation to an LLC.