If you’re thinking of converting the legal form of your small business from a Vermont corporation to a Vermont LLC, you should be aware of some basic facts regarding the state’s business-entity conversion process. Because the tax consequences can be significant, you should consult with a tax adviser before undertaking any conversion.
Statutory Conversions vs. Statutory Mergers
As an initial point, be aware that there is a distinction between a “conversion” and a “merger,” and more specifically between a “statutory conversion” and a “statutory merger.” A statutory conversion is a cheaper, quicker way to convert a corporation to an LLC—largely because you do not have to form a separate LLC before the conversion can occur. However, Vermont is one of only about ten states that do not allow statutory conversions of corporations to LLCs. Instead, Vermont only allows statutory mergers. Unlike statutory conversions, statutory mergers dorequire you to form a separate LLC before you can convert—or, perhaps more accurately, merge—your business.
Notwithstanding the distinction between statutory conversions and statutory mergers, “conversion” is a more general term that can include mergers; in this article, we’ll use “conversion” and “merger” somewhat interchangeably, sometimes speaking broadly about “conversions” and “converting” your business, even though, more narrowly and technically, we’ll be talking about a merger.
Variable Elements of Conversions
Before looking at the specific steps for converting your business, let’s be clear that there is not just one kind of corporation or one tax status for an LLC. On the contrary, there are:
- C corporations and S corporations
- for-profit corporations and non-profit corporations
- corporations formed under Vermont law and corporations formed under other states’ laws
- multi-member LLCs and single-member LLCs; and
- LLCs taxed as partnerships, LLCs taxed as corporations, and LLCs taxed as “disregarded entities.”
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 Vermont’s merger statute as it applies to closely-held, for-profit Vermont corporations merging into multi-member LLCs.
Vermont’s Merger Statute
Bearing in mind that mergers can be among the most complicated of business transactions, this section provides a very brief summary of the process of conversion-via-merger under Vermont’s merger statute. Like most states, Vermont has one merger statute under its Business Corporation Act and another merger statute under its Limited Liability Company Act; portions of each of these statutes apply to a corporation-into-LLC merger. For the most important parts of each of the two statutes, check Section 11.05 and Sections 3124 through 3126 of Title 11 of the Vermont Statutes Annotated (V.S.A.).
To convert your Vermont corporation to a Vermont LLC via a statutory merger, you will need to:
- create a new LLC
- prepare a plan of merger
- have your corporation’s board of directors adopt the plan of merger
- obtain shareholder approval of the plan of merger
- obtain LLC member approval of the plan of merger; and
- file articles of merger with the Secretary of State.
Step 1: Create an LLC
Creating an LLC is a multi-step process. However, for immediate purposes, the key elements are preparing articles of organization and an operating agreement; the articles of organization will be filed with the Secretary of State. Through these LLC organizational documents, the shareholders of your preexisting corporation will also become the members of your new LLC. For more detailed information on forming an LLC in Vermont, check How to Form an LLC in Vermont. Note: Initially, the name of your corporation cannot also be used as the name of your new LLC. However, you can specify in the plan of merger that the name of the LLC will be changed to the name of your corporation when the corporation merges into the LLC (at which point the corporation ceases to exist).
Step 2: Prepare a Plan of Merger
As its name suggests, the plan of merger will contain details about the merger. It must include:
- the name of your corporation
- the name of your new LLC prior to the merger
- the name of your LLC following the merger
- the legal “type” of your business following the merger (domestic limited liability company)
- the “terms and conditions” of the merger
- the manner and basis for converting corporate shares into LLC membership interests; and
- the street address of the new LLC’s principal place of business.
Steps 3 and 4: Corporation Board and Shareholder Approval of Plan
On the corporation side of this transaction, the plan of merger must be adopted by the board of directors, and then recommended to, and approved by, the shareholders. (For a small business, the directors may well be the same people as the shareholders.) By default, the plan must be approved by a majority of votes in each voting group entitled to vote separately on the plan. However, the merger statute does allow for the possibility that the board of directors or articles of incorporation will require a greater shareholder vote. For more details, check 11A V.S.A. § 11.03.
Step 5: LLC Approval of Plan
On the LLC side of this transaction, the plan must be approved by whatever percentage of members is required by the LLC’s operating agreement, so long as the percentage is at least a simple majority. Alternatively, if the operating agreement has no provision for approving mergers, then approval requires the consent of all LLC members. (Generally speaking, where the LLC is formed for the primary purpose of the merger, and the shareholders of the corporation are also the members of the LLC, it should be the case that all LLC members will approve the merger.) For more details, check 11 V.S.A. § 3124(c)(1).
Step 6: File Articles of Merger
The articles of merger will contain some of the same information that is likely to be contained in the plan of merger, as well as a few other items. More specifically, the articles of merger will include:
- the name of your corporation and the jurisdiction where it was formed (Vermont)
- the name of your new LLC and the jurisdiction where it was formed (Vermont)
- the date your new LLC’s articles of organization were filed with the secretary of state
- for your corporation, the designation, number of outstanding shares, and number of votes entitled to be cast by each voting group entitled to vote separately on the plan of merger
- for your corporation, the total number of votes for and against the plan of merger by each voting group entitled to vote separately on the plan
- a statement that a plan of merger has been approved and signed by your corporation and by your new LLC
- the name and address of your new LLC following the merger
- the effective date of the merger; and
- any changes to the new LLC’s articles of organization that are necessary as a result of the merger (such as change in name).
You may also need to include a copy of the plan of merger.
The Secretary of State does not have a blank form or template for the articles of merger; you will have to draft your own.
Other Important Advice
Some people may consider the formation of the new LLC, the plan of merger, the plan approval process, and the articles of merger all to be straightforward. However, mergers are complex transactions, and often involve unexpected complications. Therefore, you should very strongly consider working with a business attorney to draft the required documents and otherwise complete the merger process.
Your total filing fees for this process will be at least $150, which includes $100 for filing articles of organization for the new LLC and $50 for filing the articles of merger.
Vermont’s LLC merger statute states not only that all of your corporation’s property, as well as all of its debts, liabilities, and other obligations, are transferred to the new LLC, but also that any legal actions against your business may continue “as if the merger had not occurred”—or your new LLC may be substituted for your old corporation as a party in such actions. For more information, check 11 V.S.A. § 3126.
Apart from the items mentioned in How to Form an LLC in Vermont, one other important step when undertaking this type of merger is to make sure that no business contracts or agreements, such as bank documents, leases, licenses, and insurance, will be nullified by your corporation’s conversion to an LLC.
A key point to keep in mind is that merging a C corporation into an LLC taxed as a partnership often results in a large tax bill. This is largely because the IRS considers this kind of merger 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.
Merging a corporation into an LLC that will continue to be taxed as a corporation generally does not have the same degree of adverse tax consequences as when merging into an LLC taxed as a partnership, and may even be largely tax-free. However, as this type of merger 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.
Merging an S corporation into an LLC is fundamentally different from a merger involving 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 merger are often more limited than mergers involving a C corporation.
In general, the tax consequences associated with merging your corporation into an LLC will be complicated.Therefore, for any kind of corporation-into-LLC merger, you should consult with an experienced tax adviser.
Additional Reading and Guidance
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 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). And, finally, for information on conversion rules in other states, check Nolo’s 50-State Guide to Converting a Corporation to an LLC.