Vertex Wealth Management, LLC Michael J. Aluotto, CRPC President Private Wealth Manager 1325 Franklin Ave., Ste. 335 Garden City, NY 11530 516-294-8200 mjaluotto@1stallied.com Limited Liability Partnerships (LLP) Page 1 of 5, see disclaimer on final page
Limited Liability Partnerships (LLP) What is a limited liability partnership? A limited liability partnership (LLP) is a type of business entity closely related to a general partnership. It offers more protection from personal liability than a general partnership, making it beneficial for accountants, attorneys, and other professionals whose practices face exposure to malpractice suits. Although designed with the professional in mind, nonprofessionals may use this entity form, too. While it has similarities to a limited liability company (LLC), it is a different entity. Texas enacted the first LLP statute in 1991. A large majority of states now have such statutes. When can it be used? If you and at least one other person want to form a business, an LLP may be a favorable option for you. For professionals concerned about possible malpractice exposure, the LLP offers personal liability protection not available in a general partnership. An existing general partnership of professionals, in fact, might convert to an LLP to gain greater liability protection for its partners. Strengths Offers more liability protection than a general partnership If you practice your profession as part of an LLP, you cannot be held liable if your partner is sued for malpractice. If you practice in a general partnership, you and the other general partners can share liability for an individual partner's malpractice. Generally, if your business is organized as an LLP, you face personal liability only for your own negligence or that of an employee you directly supervise. In contrast, if your business is organized as a general partnership, you also face personal liability for the negligence of other partners and other employees you don't supervise. Note that state LLP laws vary on whether this entity shields you from personal liability for contractual claims by the business's creditors. Check your individual state's law and consider consulting an attorney for guidance. Offers a close alternative if LLCs are not an option in your state In some states, either statutory law or professional licensing boards prohibit certain professionals from forming LLCs. Since LLPs offer similar protections from personal liability, they may be a satisfactory alternative in some of these situations. Consult an attorney for advice if you are located in such a state. Example(s): Bob and Ken have a law firm in the state of XYZ. XYZ has an LLC statute, but the XYZ Bar doesn't permit attorneys to form LLCs. XYZ also has an LLP statute, and attorneys are allowed to associate as LLPs. So Bob and Ken register as a limited liability partnership. If XYZ has typical LLC and LLP statutes, attorneys in the law firm will avoid personal liability for their colleagues' malpractice. They would have the same protection from liability had the XYZ Bar allowed them to form an LLC. Forming an LLP may be relatively simple Forming an LLP may be quite straightforward. Typically, you need to file an application with your state's secretary of state or other appropriate office, pay a filing fee, and include the designation LLP or Limited Liability Partnership in the name of your company. You may subsequently need to file annual reports and pay an annual fee. Some states also require proof that the partnership has sufficient assets or liability insurance to pay potential legal claims against it. In addition, it is strongly advisable to have a written partnership agreement. (If you have an existing partnership agreement, you will need to review it and possibly amend it.) Check your state's law and consult an attorney to find out your particular state's requirements for an LLP. Seek the attorney's input on other recommended steps in forming or converting to an LLP. Tip: Since LLPs are quite similar to general partnerships, converting a general partnership to an LLP is generally quite easy. Such a conversion, moreover, may not require the formal transfer of assets from one entity to another. Page 2 of 5, see disclaimer on final page
Caution: In many states, you are not done with paperwork once the state has approved your business's LLP application. You need to renew the application annually. Otherwise, your business will revert to a general partnership. Pass-through taxation avoids the double taxation faced by C corporations Like partnerships, most LLCs, S corporations, and LLPs are pass-through entities. In other words, profits are taxed only once, at the individual owner level. The entity itself is not taxed. Caution: Several pieces of legislation have mitigated at least some of the of double taxation burden of a C corporation. These laws provide that dividends received by an individual shareholder from domestic corporations (and qualified foreign corporations) are taxed at lower long-term capital gains tax rates. Most recently, in general, the American Taxpayer Relief Act of 2012 permanently extended the preferential income tax treatment of qualified dividends and capital gains. Capital gains and qualified dividends are generally taxed at 0% for taxpayers in the 10% and 15% tax brackets, and at 15% for taxpayers in the 25% to 35% tax brackets. However, starting in 2013, dividends and capital gains are generally taxed at 20% for taxpayers in the new 39.6% tax bracket for high-income taxpayers. Also, as a result of the Affordable Care Act of 2010, beginning in 2013, an additional 3.8% Medicare tax applies to some or all of the investment income for married filers whose modified adjusted gross income exceeds $250,000 and single filers whose modified adjusted gross income is above $200,000. Tradeoffs May offer less liability protection than a limited liability company While you avoid personal liability for the negligence of other partners, you nevertheless face more liability exposure than a limited liability company (LLC) member. First, you generally face personal liability for the business's debts and legal obligations. Second, you face potential liability for the negligence of employees you directly supervise in a professional LLP. The scope of liability protection is defined in the LLP statute of each state and varies considerably between states. Consult your attorney. Example(s): Example 1: Dr. John is one of five veterinarians practicing in a state that permits veterinarians to organize as either LLCs or LLPs. His veterinary assistant, Nurse Jill, negligently amputates a hind leg of a very famous dog from a TV series. If Dr. John's veterinary practice is an LLC, he will not be personally liable for his nurse's negligence. His exposure in relation to her negligence is limited to his investment in the LLC. If the practice is organized as an LLP, however, he could be personally liable for her negligence if he directly supervises Nurse Jill's activities. Example(s): Example 2: Bob and Frank are two members of an architectural firm called Ordinary Designs and Dimensions. The firm has defaulted on a loan from the Last National Bank, and the bank is suing. If their business is an LLC (and assuming neither of them has personally guaranteed the loan), their only exposure is the extent of their individual investments in the business. If their business is an LLP, and depending upon the LLP statute for their state, either could be personally liable for the full amount of the damages. LLPs are not available in all states Although a large majority of states have recognized LLPs in a very short space of time (since 1991), a few states still do not offer them as a choice of business entity. LLP laws are less uniform among the states than are LLC, general corporation, and partnership laws LLP statutes tend to vary more among the states than LLC, corporation, or partnership statutes. You need to study carefully your individual state's law as well as the laws of other states in which you do business. This variation among states' laws may make an LLP a less desirable choice for your business if it operates in several states. It should be noted, however, that LLC laws also vary significantly, though perhaps not to the same degree. Page 3 of 5, see disclaimer on final page
Transfer of LLP ownership interests can dissolve the LLP If an LLP partner sells his or her partnership interest, the likely consequence is the LLP's dissolution. A provision in the partnership agreement or the consent of all partners, however, might allow for the sale without dissolving the entity. This likelihood of dissolution may make transfer of LLP ownership interests more problematic than the transfer of shares of a corporation. Page 4 of 5, see disclaimer on final page
Securities offered through First Allied Securities, Inc. A Registered Broker/Dealer Member FINRA/SIPC Advisory Services offered through First Allied Advisory Services, Inc. A Registered Investment Adviser Vertex Wealth Management, LLC Michael J. Aluotto, CRPC President Private Wealth Manager 1325 Franklin Ave., Ste. 335 Garden City, NY 11530 516-294-8200 mjaluotto@1stallied.com Page 5 of 5 Prepared by Broadridge Investor Communication Solutions, Inc. Copyright 2014