Converting an LLC to a Corporation in Rhode Island

If you are planning on converting an LLC to a corporation in Rhode Island, here's what you need to know.

The details of how to convert your Rhode Island limited liability company (LLC) to a Rhode Island 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.

Rhode Island’s Conversion Statute

In Rhode Island, you can use a relatively new, simplified procedure that allows you to convert your business from an LLC to a corporation largely by filing a few basic documents with the Secretary of State. This procedure, technically known as “statutory conversion,” automatically transfers your LLC’s assets and liabilities to the new corporation. Unlike other methods of conversion, only one business entity is involved: you do not need to separately form a corporation before the conversion can occur. By the same token, there is also no need to dissolve your LLC. Instead, under Rhode Island’s conversion statute, your business in its converted form is “deemed to be the same entity as” before the conversion. The conversion procedure is codified primarily in Sections 7-1.2-1007 and 7-16-5.2 of the Rhode Island General Laws (R.I. Gen. Laws).

To convert your Rhode Island corporation to a Rhode Island LLC, you need to:

  • have your LLC authorize the conversion; and
  • file a certificate of conversion and articles of incorporation with the Secretary of State.

Unlike many other states, Rhode Island does not specifically require you to prepare a “plan of conversion” or similar document in order for your LLC to authorize the conversion; it may be that no document at all is needed in order for your LLC to authorize the conversion. As a starting point, you should first look to your LLC’s operating agreement; if it contains rules for authorizing a conversion, you should follow those rules. However, if the operating agreement does not contain provisions for authorizing a conversion, but does contain provisions for authorizing a merger or consolidation, then you should follow the merger or consolidation rules as though they applied to a conversion. (Mergers and consolidations are legally distinct from conversions.) Finally, if there are no rules regarding conversions, mergers, or consolidations, then authorization of the conversion requires the approval of a simple majority of member interests in each member class or group. For more information, check R.I. Gen. Laws § 7-16-5.2 (b).

The certificate of conversion will contain basic information about the conversion, including:

  • the legal form of your business before conversion (limited liability company)
  • the legal form of your business after conversion (business corporation)
  • the name of your LLC
  • the date on which your LLC was created
  • the jurisdiction where your LLC was created, and, if that jurisdiction has since changed, the current jurisdiction for your LLC (Rhode Island)
  • a statement that the conversion has been properly approved according to LLC documents or by applicable law and the LLC agreement
  • the effective date for the conversion; and
  • one or more authorized signatures.

A blank certificate of conversion form is available for download from the Secretary of State.

The articles of incorporation will include information about your new corporation, such as:

  • its name
  • the total number of shares its authorized to issue, including classes
  • optionally, a statement regarding par value of shares
  • the Rhode Island street address of its registered agent
  • optionally, statements of the corporation’s purpose and duration
  • the names and addresses of the incorporators
  • the effective date of the articles, if other than the filing date; and
  • an authorized signature.

For your convenience, the Secretary of State publishes a blank articles of incorporation form.

The conversion approval process, certificate of conversion, and articles of incorporation 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 $230, which covers the cost for filing the certificate of conversion and the articles of incorporation.

Be aware that Rhode Island’s conversion statute states not only that all of your LLC’s property, as well as all of its debts, liabilities, and duties, are automatically transferred to the new corporation, but also that the rights of creditors against your business continue unimpaired, and any legal actions against your business “remain vested in” the new corporation. For more information, check R.I. Gen. Laws § 7-1.2-1007(f).

The foregoing information explains the basic steps for converting from an LLC to a C corporation. If you want to convert to an S corporation, you will also need to file IRS Form 2553.

Additional Steps

Apart from the foregoing steps, you will also need to take care of all the tasks normally associated with creating and maintaining a new corporation, such as:

  • drafting corporate bylaws
  • electing corporate officers and appointing corporate directors
  • holding an initial board meeting
  • issuing stock certificates
  • using the official corporation name on your business documents; and
  • filing an annual report with the state.

It’s important that you follow all of these required formalities in order to ensure that your business continues to have limited liability and can take advantage of various potential tax benefits. For a more complete discussion of the steps involved in forming a corporation, consult Incorporate Your Business: A Legal Guide to Forming a Corporation in Your State, 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 entity change.

Tax Consequences

The IRS makes clear in a 2004 bulletin that, generally speaking, it will tax a statutory conversion 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-to-corporation conversions 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.

Other Considerations and Information

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.

November 2012

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