If you’re thinking of converting the legal form of your small business from a corporation to a Wisconsin 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.
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 Wisconsin 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 Wisconsin’s business-entity conversion statute as it applies to closely-held, for-profit Wisconsin corporations converting to multi-member LLCs.
Wisconsin’s Conversion Statute
In Wisconsin, 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 Financial Institutions. 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 Section 180.1161 of the Wisconsin Statutes (Wis. Stat.).
To convert your Wisconsin corporation to a Wisconsin LLC, you need to:
- have your corporation’s board of directors adopt a plan of conversion
- get the corporation’s shareholders to approve the plan of conversion; and
- file a certificate of conversion, including the plan of conversion and articles of organization, with the Department of Financial Institutions.
The plan of conversion contains key information about the conversion, including such things as:
- the name and legal “type” of your business before conversion (type = business corporation)
- the jurisdiction where your corporation is organized (Wisconsin)
- the name and legal “type” of your business after conversion (type = limited liability company)
- the jurisdiction where your new LLC will be organized (Wisconsin)
- the “terms and conditions” of the conversion
- the basis for converting corporate shares into LLC membership interests
- the effective date for the filing, if other than the filing date; and
- as an attachment, your new LLC’s articles of organization.
Wisconsin’s conversion statute does not contain specific rules for approval of the plan of conversion. Instead, you need to rely on the rules for approving a merger, which are contained in Wisconsin’s corporation merger statute. (A merger is legally distinct from a conversion.) By default under the applicable law, approval requires a simple majority of votes in each voting group entitled to vote on the plan. However, the statute also allows for the possibility that a greater vote is required by your corporation’s articles of incorporation or bylaws. For more details, check Wis. Stat. § 180.1103.
The articles of organization, which must be included in your plan of conversion, will contain basic information about your new LLC, such as:
- its name
- a statement that it is organized under Ch. 183 of the Wisconsin Statutes
- an indication of whether it will be managed by managers or by members; and
- the name of its registered agent and Wisconsin street address of its registered office.
The certificate of conversion, which will be filed with the Department of Financial Institutions with the plan of conversion and articles of organization attached, will include contain some of the same information as the plan of conversion, as well as a few other items. More specifically, the certificate of conversion will include:
- the name and legal “type” of your business before conversion
- the jurisdiction where your corporation is organized
- an indication whether your corporation has a fee simple interest in any Wisconsin real estate
- the name and legal “type” of your business after conversion
- the jurisdiction where your new LLC will be organized
- a statement that the plan of conversion was approved in accordance with applicable Wisconsin law
- the name of the corporation’s registered agent and Wisconsin street address of its registered office
- the name of the new LLC’s registered agent and Wisconsin street address of its registered office; and
- an authorized signature.
For your convenience, the Department of Financial Institutions has a downloadable document containing blank templates for the plan of conversion, articles of organization, and certificate of conversion, along with instructions.
The various documents required for the conversion process all may appear straightforward. However, keep in mind that 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.
Your minimum filing fee for this process likely will be $150, which is the cost for filing the certificate of conversion with the attached plan of conversion and articles of organization.
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, check Nolo’s 50-State Guide to Converting a Corporation to an LLC.