If you’re thinking of converting the legal form of your small business from a corporation to a Tennessee 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 are 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 Tennessee 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 Tennessee’s business-entity conversion statute as it applies to closely-held, for-profit Tennessee corporations converting to multi-member LLCs.
Tennessee’s Conversion Statute
In Tennessee, 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 Department 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 Tennessee’s conversion statute, your business is considered to “be the same . . . entity without interruption” as the corporation before conversion.
Please Note: Key sections of Tennessee’s conversion statute are revised effective January 1, 2013.This article is based on the revised version of the statute. The conversion procedure is codified primarily in Sections 48-21-109 through 48-21-115 and Section 48-249-703 of the Tennessee Code Annotated (Tenn. Code Ann.).
To convert your Tennessee corporation to a Tennessee 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 entity conversion; and
- file a certificate of conversion and articles of organization with the Department of State.
The plan of entity conversion contains key information about the conversion. Required items include:
- the legal “type” of your business after conversion (domestic limited liability company)
- the “terms and conditions” of the conversion
- the 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, Tennessee’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 board of directors or your corporation’s charter (also sometimes known as the articles of incorporation). For more details, check Tenn. Code Ann. § 48-21-111.
The certificate of conversion contains some of the same information as the plan of entity conversion, as well as a few other items. More specifically, it must include:
- the name of your new LLC
- the name of your corporation
- the jurisdiction where your corporation was formed and its date of formation
- a statement that the plan of conversion has been duly approved by the shareholders as required by Tennessee law and your corporation’s charter; and
- an attached copy of your new LLC’s articles of organization.
A blank certificate of conversion form is available for download from the Department of State. (Technically, the conversion statute also requires that you provide the legal “type” of your business after conversion; however, this information is already printed on the form.)
The articles of organization for your new LLC will include items such as:
- the LLC’s name
- the name and complete Tennessee street address of the LLC’s initial registered agent
- the closing month of your LLC’s fiscal year
- the effective date for the articles, if other than the filing date
- an indication of whether the LLC will be member-managed, manager-managed, or director-managed
- the number of LLC members at the date of filing
- the LLC’s duration, if not perpetual
- the complete address for the LLC’s principal office, including county
- the mailing address for the LLC, if different from the principal office address; and
- an authorized signature.
For your convenience, the Department of State publishes a blank articles of organization form. Depending on the details of your particular LLC, other items may also be included in the articles of organization; check the instructions included with the form for more details.
The plan of entity conversion, certificate 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 conversion plan. 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 filing fees for this process likely will vary depending on the number of LLC members. The minimum filing fees would include $20 for the certificate of conversion, and a minimum $300 for the articles of organization.
Finally, be aware that Tennessee’s conversion statute states not only that all of your corporation’s property, as well as all of its debts, liabilities, and obligations, are automatically transferred to the new LLC, but also that all rights of creditors remain unimpaired, and any legal actions against your business may continue “as if the conversion had not occurred.” For more information, check Tenn. Code Ann. §§ 48-21-114, 48-249-703(d), and 48-249-703(e).
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.