The details of how to convert your Arizona limited liability company (LLC) to an Arizona corporation will vary depending on your specific situation. However, here is some general guidance on the process of conversion to a for-profit corporation. 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 an LLC to a corporation—largely because you do not have to form a separate corporation before the conversion can occur. However, Arizona is one of only about fifteen states that do not allow statutory conversions of LLCs to corporations. Instead, Arizona only allows statutory mergers. Unlike statutory conversions, statutory mergers do require you to form a separate corporation 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.
Arizona’s Merger Statutes
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 Arizona’s merger statutes. As in most states, Arizona has one merger statute under its Limited Liability Company Act and another merger statute under its Business Corporation Act; portions of each of these statutes apply to a LLC-into-corporation merger. For the most important parts of each of the two statutes, check Sections 10-1101, 10-1103, 10-1105, 10-1108, and 29-752 through 29-757 of the Arizona Revised Statutes (A.R.S.).
To convert your Arizona LLC to an Arizona corporation via a statutory merger, you need to:
- create a new corporation
- prepare a plan of merger
- obtain LLC member approval of the plan of merger
- have your corporation’s board of directors adopt the plan of merger
- obtain shareholder approval of the plan of merger; and
- file articles of merger with the Arizona Corporation Commission.
Step 1: Create a Corporation
Creating a corporation is a multi-step process. However, for immediate purposes, the key elements are preparing articles of incorporation and bylaws; the articles of incorporation will be filed with the Arizona Corporation Commission. Through these formational documents, the members of your preexisting LLC will also become the shareholders of your corporation. For more detailed information on forming a corporation in Arizona, check How to Form a Corporation in Arizona. Note: Initially, the name of your LLC cannot also be used as the name of your new corporation. However, you can specify in the plan of merger that the name of the corporation will be changed to the name of your LLC when the LLC merges into the corporation (at which point the LLC 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 LLC and the jurisdiction where it was formed (Arizona)
- the name of your new corporation prior to the merger and the jurisdiction where it was formed (Arizona)
- the “terms and conditions” of the proposed merger
- the name of the corporation after the merger
- the manner and basis for converting LLC membership interests into corporate shares; and
- any amendments that will be made to the new corporation’s articles of incorporation as a result of the merger (such as a change in name).
Step 3: LLC Approval of Plan
On the LLC side of this transaction, the plan must be approved by all LLC members unless the LLC’s operating agreement provides otherwise. For more details, check A.R.S. § 29-752.
Steps 4 and 5: Board Adoption and Shareholder Approval of Plan
On the corporation side of this transaction, the plan of merger must be adopted by a majority vote of the board of directors, and then approved by the shareholders. (For a small business, the directors may well be the same people as the shareholders.) By default, shareholder approval requires a simple majority votes in each voting group entitled to vote separately on the plan. However, the relevant statute allows for the possibility that the board of directors or the articles of incorporation require a greater vote. Moreover, it’s possible that, because of the limited changes that will be made to your newly-formed corporation through the merger, no shareholder approval will be required. For more details, check A.R.S. § 10-1103. (Generally speaking, where the corporation is formed for the primary purpose of the merger, and the LLC members are also the corporation shareholders, it should be the case that all shareholders will approve the merger.)
Step 6: File Articles of Merger
The articles of merger will include:
- a copy of your plan of merger
- the name of your LLC
- the name of your new corporation prior to the merger
- 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 as to each corporation
- for your corporation, the total number of votes cast for and against the plan by each voting group entitled to vote separately on the plan
- a statement that a plan of merger was approved by your corporation and by your new LLC in the manner provided by law
- the name and address of your new corporation after the merger
- the name and address of your new corporation’s statutory agent
- the effective date for the articles, if other than the filing date
- any amendments to the articles of incorporation for your new corporation
- if shareholder approval was not required, a statement to that effect
- if shareholder approval was required, a statement providing details of the number and types of shares entitled to vote on the merger, and the number of votes for and against the merger; and
- authorized signatures.
The articles of merger must be published within sixty days after approval by the Arizona Corporation Commission. If the articles of merger include amendments to your new corporation’s articles of incorporation, there is an additional requirement: the articles of merger “shall be styled ‘articles of amendment and merger’.” For more details, check A.R.S. § 10-1105. The Arizona Corporation Commission does not publish a blank form or template for the articles of merger; you will have to draft your own. (The Arizona Corporation Commission does publish a cover sheet that must accompany the filing.)
Other Important Advice
Some people may consider the formation of the new corporation, the plan of merger, the plan approval process, and the articles of merger all to be straightforward. However, as mentioned above, mergers are generally complex transactions, and often involve unexpected complications. Therefore, you should strongly consider working with a business attorney to draft the required documents and otherwise complete the merger process.
Total filing fees will be at least $160, which includes $60 for filing articles of incorporation for the new corporation and $100 for filing the articles of merger.
The merger statute under Arizona’s LLC Act states not only that all of your LLC’s property, as well as all of its debts and obligations, are transferred to the new corporation, but also that the rights of creditors against your business’s property remain unimpaired, and any legal actions against your business “may be prosecuted to judgment as if the merger . . . had not taken place”—or your new corporation may be substituted for your old LLC as a party in such actions. For more information, check A.R.S. § 29-757. (Note: unlike some other states, the merger statute under Arizona’s Business Corporation Act does not specifically address property and liability transfers or other effects of a merger when an LLC is involved.)
Apart from the items mentioned in How to Form a Corporation in Arizona, 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 LLC’s conversion to a corporation.
The foregoing information explains the basic steps for converting from LLC to C Corporation. If you want to convert to an S Corporation, you will also need to file IRS Form 2553.
The IRS makes clear in a 2004 bulletin that, generally speaking, it will tax a statutory merger as though the LLC members formally transferred all LLC assets and liabilities to the corporation in exchange for stock, and then immediately liquidated the LLC. However, the specific tax consequences for LLC-into-corporation mergers vary from one case to the next. Because the tax consequences can sometimes be significant, you should consult with a tax adviser before undertaking any conversion.
Some Final Considerations
Our main concern here has been converting the legal form of your business from an LLC to a corporation. However, if you’re seeking to convert your LLC’s tax status from partnership to corporation without changing the LLC’s legal form, you only need to file IRS Form 8832 (to be taxed as a C Corporation) or IRS Form 2553 (to be taxed as an S corporation). (By default, the IRS taxes a multi-member LLC as a partnership and a single-member LLC as a so-called “disregarded entity;” there is no separate IRS tax category for LLCs.) While the IRS forms for changing tax status are fairly straightforward, do be aware that this procedure—known as “Check-the-Box”—involves special eligibility criteria; you can find those criteria in the instructions included with the forms.
Keep in mind that certain considerations may affect the timing of your conversion. For example, if you are converting to a C Corporation in order to make your business more attractive to outside investors, you will probably need to convert before any investment occurs. Conversely, if outside investors are not at issue, but the specific nature of your LLC’s assets and liabilities will lead to an undesirable tax burden for the current tax year, you may need to at least temporarily delay the conversion.
For additional guidance on converting from an LLC to a corporation, check Corporations and S Corporations vs. LLCs. For information on conversion rules in other states, check Nolo’s 50-State Guide to Converting an LLC to a Corporation.