If you're thinking of converting the legal form of your small business from a corporation to a West Virginia 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:
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 West Virginia's business-entity conversion statute as it applies to closely-held, for-profit West Virginia corporations converting to multi-member LLCs.
West Virginia's Conversion Statute
In West Virginia, you can use a relatively new, simplified procedure that allows you to convert your business from a corporation to an LLC largely by filing one key document with the Secretary 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 no need to dissolve your corporation. Instead, under West Virginia's conversion statute, the conversion "shall constitute a continuation of the existence of the converting corporation in the form of a limited liability company of this state." The conversion procedure is codified primarily in Section 31D-11-1109 of the West Virginia Code (W.Va. Code).
To convert your West Virginia corporation to a West Virginia LLC, you need to:
Unlike many other states with more detailed conversion statutes, West Virginia does not specify what must be contained in a plan of conversion. By way of comparison, other states often require that such a plan state what legal form your business will have after the conversion (such as limited liability company), and the "terms and conditions" of the conversion (which usually must include the basis for converting corporate shares into LLC membership interests). The language on the plan of conversion, such as it is, is found in W.Va. Code § 31D-11-1109(b). Because of the statute's lack of specificity, you should consider consulting with a business attorney regarding this issue.
West Virginia's conversion statute requires approval of the plan of conversion by all shareholders, whether or not entitled to vote. This contrasts with many other states, which require only some form of majority vote, or allow for the possibility that a lesser majority voting requirement is permitted by the articles of incorporation or board of directors. For more details, check W.Va.. Code § 31D-11-1109(b).
The statement of conversion contains a few basic pieces of information about the conversion, including:
For your convenience, the Secretary of State provides a blank statement of conversion form for download.
The articles of organization contain information about your new LLC, including such items as:
A blank articles of organization form is available for download from the Secretary of State.
The plan of conversion, statement of conversion, and articles of organization all may appear straightforward; however, keep in mind that the conversion statute provides essentially no guidance on the details of the plan of conversion. Moreover, converting your particular business may involve unexpected complications. Therefore, it is advisable to work with a business attorney to draft the required documents and otherwise complete the conversion process.
Your minimum filing fee for this process likely will be $25, which is the cost for filing the statement of conversion together with the articles of organization.
Finally, be aware that West Virginia's conversion statute states not only that all of your corporation's property, as well as all of its debts, liabilities, and duties, are automatically transferred to the new LLC, but also that the rights of any creditors against your business continue unimpaired, and any legal actions against your business "remain vested in"—may continue against—the new LLC. For more information, check W.Va. Code § 31D-11-1109(i).
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:
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 50-State Guide Converting a Corporation to an LLC and 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).