CHOICE OF ENTITY DECISION TREE

Transcription

1 CHOICE OF ENTITY DECISION TREE BYRON F. EGAN Jackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, TX State Bar of Texas CHOICE AND ACQUISITION OF ENTITIES IN TEXAS May 25, 2012 San Antonio CHAPTER 1.1

2 TABLE OF CONTENTS I. GENERAL...1 A. Introduction...1 B. Statutory Updating...3 C. Texas Business Organizations Code Background Source Law Codified Hub and Spoke Organization of Code Effective Date Changes Made By the TBOC...7 (a) Vocabulary...7 (b) Certificate of Formation...8 (c) Filing procedures...8 (d) Entity Names...9 (e) Governance...9 (f) Construction...10 (g) Transition Rules...10 D. TBOC Amendments Made in 2011 Legislative Session Technical TBOC Changes Other TBOC Amendments...11 (a) LLP Insurance Requirement Eliminated...11 (b) LLP Liability Shield Improved...11 (c) Charging Orders for General Partnerships...11 (d) Reasonable Restrictions on Access to Books and Records...11 (e) Disenters Rights...11 (f) Corporate Veil Piercing Limits Application to LLCs...12 E. Amendments to Texas Business & Commerce Code in 2011 Legislative Session Choice of Law...12 (a) Negotiations From Chosen Jurisdiction...14 (b) Internal Affairs...14 (c) $25 Million Syndicated Loans...14 (d) Reasonable Relationship Determined at Time of Transaction Uniform Commercial Code Article F. Federal Check-the-Box Tax Regulations Classification Check-the-Box Regulations...16 (a) Eligible Entities...16 (b) The Default Rules...16 (c) The Election Rules...17 (d) Existing Entities Former Classification Regulations...17 (a) Continuity of Life...18 (b) Centralization of Management...19 (c) Limited Liability...19 i

3 (d) Free Transferability of Interest...19 G. Texas Entity Taxation Corporations and LLCs, but not Partnerships, Subject to Former Franchise Tax Franchise Tax Change Proposals Margin Tax...21 (a) Who is Subject to Margin Tax...23 (b) Passive Entities...26 (c) LLPs...27 (d) Prior Chapter 171 Exemptions...27 (e) Small Business Phase-In...27 (f) Basic Calculation...28 (g) Gross Revenue Less (x) Compensation or (y) Cost of Goods Sold...29 (h) Gross Revenue...29 (i) The Compensation Deduction...31 (j) The Cost of Goods Sold Deduction...31 (k) Transition and Filing...32 (l) Unitary Reporting...32 (m) Combined Reporting...33 (n) Apportionment...35 (o) Credits / NOLs...35 (p) Administration and Enforcement...36 (q) Effect of Margin Tax on Choice of Entity Decisions Constitutionality of Margin Tax Upheld in Allcat Classification of Margin Tax Under GAAP Internal Partnerships Will Not Work Under Margin Tax Conversions Legislative Tax Changes...42 (a) General Administrative Provisions...42 (1) Record Retention...42 (2) Late Filing Penalty...42 (3) Enhanced Enforcement...42 (b) Tax Speed Up Provisions...43 (c) Margin Tax...43 (d) Sales Tax...43 (1) Nexus...43 (2) Sale for Resale...44 (e) Property Tax...44 H. Business Combinations and Conversions Business Combinations Generally...44 (a) Merger...44 (b) Share Exchange...44 (c) Asset Sale Conversions...48 (a) General...48 (b) Texas Statutes...48 ii

4 (c) Federal Income Tax Consequences...50 (1) Conversions of Entities Classified as Partnerships...51 (2) Conversions of Entities Classified as Corporations...51 (d) Effect on State Licenses...52 I. Use of Equity Interests to Compensate Service Providers...52 J. Choice of Entity...52 II. CORPORATIONS...53 A. General...53 B. Taxation Taxation of C-Corporations Taxation of S-Corporations...55 (a) Effect of S-Corporation Status...55 (b) Eligibility for S-Corporation Status...56 (c) Termination of S-Corporation Status...56 (d) Liquidation or Transfer of Interest Contributions of Appreciated Property Texas Entity Taxes Self-Employment Tax...57 C. Owner Liability Issues...57 D. Management...60 E. Fiduciary Duties General Business Judgment Rule Overcoming Business Judgment Rule Corporate Opportunities Renunciation Interested Director Transactions Limitation of Director Liability...68 F. Ability to Raise Capital...70 G. Transferability of Ownership Interests Restrictions on Transfer of Shares Securities Law Restrictions Beneficial Owners No Bearer Shares...72 H. Continuity of Life...72 I. Formation...72 J. Operations in Other Jurisdictions...74 K. Business Combinations; Conversions...74 L. Anti-Takeover...75 III. GENERAL PARTNERSHIP...76 A. General Definition of Person Factors Indicating Partnership Factors Not Indicative of Partnership Oral Partnerships Joint Ventures...79 iii

5 B. Taxation General Rule Joint Venture/Tax Implications Contributions of Appreciated Property Texas Entity Taxes Self-Employment Tax...81 C. Owner Liability Issues...81 D. Management...83 E. Fiduciary Duties General Loyalty Care Candor Liability Effect of Partnership Agreement...85 F. Ability To Raise Capital...85 G. Transferability of Ownership Interests Generally Partnership Interests as Securities...86 H. Continuity of Life...87 I. Formation...88 J. Operations in Other Jurisdictions...88 K. Business Combinations...89 IV. LIMITED PARTNERSHIP...89 A. General...89 B. Taxation Federal Income Taxation Contributions of Appreciated Property Texas Entity Taxes Self-Employment Tax...90 C. Owner Liability Issues...91 D. Distributions...93 E. Management...94 F. Fiduciary Duties...94 G. Indemnification H. Flexibility In Raising Capital I. Transferability of Ownership Interests J. Continuity of Life K. Formation L. Operations in Other Jurisdictions M. Business Combinations V. LIMITED LIABILITY COMPANY A. General B. Taxation Check the Box Regulations iv

6 2. Other Tax Issues Relating to LLCs (a) Texas Entity Taxes (b) Flexible Statute (c) One Member LLC (d) Contributions of Appreciated Property (e) Self-Employment Tax C. Members; Managers D. Purposes and Powers E. Formation F. Company Agreement G. Management H. Fiduciary Duties I. Indemnification J. Capital Contributions K. Allocation of Profits and Losses; Distributions L. Owner Limited Liability Issues M. Nature and Classes of Membership Interests N. Assignment of Membership Interests O. Dissolution P. Merger; Conversion Q. TLLCA Relationship to TBCA and TMCLA R. Foreign LLCs S. Professional LLCs T. Diversity Jurisdiction VI. LIMITED LIABILITY PARTNERSHIP A. General B. Evolution of the LLP in Texas First LLP in 1991 in Texas LLP Now Nationwide Amendment to Limit Contract Liabilities Insurance Requirement TBOC Prior to 2011 S C. Liability Shielded After 2011 S.B LLP Shield Limits to LLP Shield Burden of Proof LLP Status Does Not Affect Liability of Partnership Shielded vs Other State LLP Statutes D. Post 2011 S.B. 748 Requirements for LLP Status Name Filing with the Secretary of State of Texas E. Taxation Federal Tax Classification Texas Entity Taxes v

7 3. Self-Employment Tax F. Other Issues Advertisement of LLP Status Assumed Name Certificate Time of Compliance Effect on Pre-LLP Liabilities Limited Partnership as LLP Indemnification and Contribution Inconsistent Partnership Agreement Provisions Fiduciary Duties Foreign LLP Qualification Bankruptcy Federal Diversity Jurisdiction VII. EXTRATERRITORIAL RECOGNITION OF LLC AND LLP LIMITED LIABILITY171 A. General B. Texas Statutes C. Texas Cases D. Decisions in Other States E. Qualification as Foreign Entity and Other Ways to Reduce Extraterritorial Risk VIII. DECISION MATRIX IX. TAX COSTS IN CHOICE OF ENTITY DECISION X. CONCLUSION APPENDIX A Entity Comparison Chart APPENDIX B Basic Texas Business Entities and Federal/State Taxation Alternatives Chart APPENDIX C Texas Business Organizations Code Table of Contents As of September 1, 2011 APPENDIX D An Introduction to the Texas Business Law Foundation APPENDIX E Legislation Sponsored by the Texas Business Law Foundation in the 2011 Legislative Session APPENDIX F Egan on Entities vi