The details of how to convert your Vermont limited liability company (LLC) to a Vermont 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, Vermont is one of only about fifteen states that do not allow statutory conversions of LLCs to corporations. Instead, Vermont 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.
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 LLC-into-corporation 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 LLC to a Vermont corporation via a statutory merger, you will 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 Secretary of State.
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 Secretary of State. Through these organizational documents, the members of your preexisting LLC will also become the shareholders of your new corporation. For more detailed information on forming a corporation in Vermont, check How to Form a Corporation in Vermont. 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
- the name of your new corporation prior to the merger
- the name of your corporation following the merger
- the legal “type” of your business following the merger (domestic profit corporation)
- the “terms and conditions” of the merger
- the manner and basis for converting LLC membership interests into corporate shares; and
- the street address of the new corporation’s principal place of business.
Step 3: 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 it 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. For more details, check 11 V.S.A. § 3124(c)(1).
Steps 4 and 5: 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, shareholder approval of the plan requires a majority of votes in each voting group entitled to vote 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. (Generally speaking, where the corporation is formed for the primary purpose of the merger, and the members of the LLC are also the shareholders of the corporation, it should be the case that all corporation shareholders will approve the merger.)
Step 6: File Articles of Merger
The articles of merger will include the following items:
- a copy of your plan of merger
- the name of your LLC and the jurisdiction where it was formed (Vermont)
- the name of your new corporation and the jurisdiction where it was formed (Vermont)
- the date your new corporation’s articles of incorporation 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 LLC and new corporation
- the name and address of your new corporation following the merger
- the effective date of the merger; and
- any changes to the new corporation’s articles of incorporation that are necessary as a result of the merger (such as change in name).
Note that many of the listed items may well already be contained in your 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 corporation, 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 $125, which includes $75 for filing articles of incorporation and $50 for filing the articles of merger.
Vermont’s merger statute under the LLC laws states not only that all of your LLC’s property, as well as all of its debts, liabilities, and other obligations, are transferred to the new corporation, but also that any legal actions against your business may continue “as if the merger had not occurred”—or your new corporation may be substituted for your old LLC as a party in such actions. For more information, check 11 V.S.A. § 3126.
Apart from the items mentioned in How to Form a Corporation 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 LLC’s conversion to a corporation.
The foregoing information explains the basic steps for converting from an 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.