REVENUE RULE 95-9

1995-3 I.R.B. 17.

CLASSIFICATION OF SOUTH DAKOTA LIMITED LIABILITY COMPANY

Published: January 17, 1995

Section 7701 - Definitions, 26 CFR 301.7701-2: Associations.

Classification of South Dakota Limited Liability Company. An unincorporated organization operating under the South Dakota Limited Liability Company Act is classified as a partnership for Federal tax purposes under section 301.7701-2 of the regulations.

ISSUE

Is M, a South Dakota limited liability company, classified for federal tax purposes as an association or as a partnership under s 7701 of the Internal Revenue Code?

FACTS

M is organized as a limited liability company (LLC) pursuant to the provisions of the South Dakota Limited Liability Company Act (Act), S.D. Codified Laws Ann. §§47-34-1 through 47-34-59 (1993). M is authorized under its articles of organization to engage in any and all business activity permitted by the laws of South Dakota. M has 25 members. Three of the members, A, B, and C, are the elected managers under M's articles of organization and its operating agreement.

Section 47-34-16 of the Act provides that the management of an LLC is vested in its members in proportion to their contributions to the capital of the LLC, as adjusted from time to time to properly reflect any additions or withdrawals, unless otherwise provided in the LLC's articles of organization. The articles of organization may provide, however, that management of an LLC may be vested in a manager or managers who are elected by the members in the manner prescribed by the LLC's operating agreement. In this case, managers will be elected annually by the members in a manner provided in the operating agreement. The manager or managers shall also hold the offices and have the responsibilities accorded to them by the members and set out in the operating agreement of the LLC. M's articles of organization provide that management of M may be vested in a manager or managers elected by the members in the manner prescribed by M's operating agreement. M's operating agreement grants exclusive managerial authority to its designated managers.

Section 47-34-17 of the Act provides that neither the members of an LLC nor the managers of an LLC are liable under a judgement, decree, order of a court, or in any other manner, for a debt, obligation or liability of the LLC.

Section 47-34-21 of the Act provides that the interest of all members in an LLC constitutes the personal estate of the member and may be transferred or assigned as provided in the operating agreement. If all of the other members of the LLC other than the member proposing to dispose of the interest do not approve, however, of the proposed transfer or assignment by unanimous written consent, the transferee of the member's interest has no right to participate in the management of the business and affairs of the LLC or to become a member. The transferee is only entitled to receive the share of profits or other compensation by way of income and the return of contributions, to which that member would otherwise be entitled. Under M's operating agreement, a member's interest is assignable in whole or in part.

Section 47-34-29 of the Act provides that an LLC is dissolved upon the occurrence of any of the following events: (1) if the period fixed for the duration of the LLC expires; (2) by the unanimous written agreement of all members; (3) upon the death, retirement, resignation, expulsion, bankruptcy, or dissolution of a member or occurrence of any other event which terminates the continued membership of a member in the LLC, unless the business of the LLC is continued by the consent of all the remaining members under a right to do so stated in the articles of organization of the LLC; or (4) if there ceases to exist at least two members of the LLC. M's articles of organization provide that M dissolves upon the death, retirement, resignation, expulsion, bankruptcy, or dissolution of any of M's members unless all of M's remaining members agree to continue M.

LAW AND ANALYSIS

Section 7701(a)(2) provides that the term "partnership" includes a syndicate, group, pool, joint venture, or other unincorporated organization, through or by means of which any business, financial operation, or venture is carried on, and which is not a trust or estate or a corporation.

Section 301.7701-1(b) of the Procedure and Administration Regulations states that the Code prescribes certain categories, or classes, into which various organizations fall for purposes of taxation. These categories, or classes, include associations (which are taxable as corporations), partnerships, and trusts. The tests, or standards, that are to be applied in determining the classification in which an organization belongs are set forth in §§301.7701-2 through 301.7701-4.

Section 301.7701-2(a)(1) sets forth the following major characteristics of a corporation: (1) associates, (2) an objective to carry on business and divide the gains therefrom, (3) continuity of life, (4) centralization of management, (5) liability for corporate debts limited to corporate property, and (6) free transferability of interests. Whether a particular organization is to be classified as an association must be determined by taking into account the presence or absence of each of these corporate characteristics.

Section 301.7701-2(a)(2) provides that an organization that has associates and an objective to carry on business and divide the gains therefrom is not classified as a trust, but rather as a partnership or association taxable as a corporation. It further provides that characteristics common to partnerships and corporations are not material in attempting to distinguish between an association and a partnership. Since associates and an objective to carry on business and divide the gains therefrom are generally common to corporations and partnerships, the determination of whether an organization that has these characteristics is to be treated for tax purposes as a partnership or as an association depends on whether there exist centralization of management, continuity of life, free transferability of interests, and limited liability.

Section 301.7701-2(a)(3) provides that if an unincorporated organization possesses more corporate characteristics than noncorporate characteristics, it constitutes an association taxable as a corporation.

In interpreting s 301.7701-2, the Tax Court, in Larson v. Commissioner, 66 T.C. 159 (1976), acq., 1979-1 C.B. 1, concluded that equal weight must be given to each of the four corporate characteristics of continuity of life, centralization of management, limited liability, and free transferability of interests.

In the present situation, M has associates and an objective to carry on business and divide the gains therefrom. Therefore, M must be classified as either an association or a partnership. M is classified as a partnership for federal tax purposes unless the organization has a preponderance of the remaining corporate characteristics of continuity of life, centralization of management, limited liability, and free transferability of interests.

Section 301.7701-2(b)(1) provides that if the death, insanity, bankruptcy, retirement, resignation, expulsion, or other event of withdrawal of a general partner of a limited partnership causes a dissolution of the partnership, continuity of life does not exist; furthermore, continuity of life does not exist notwithstanding the fact that a dissolution of the limited partnership may be avoided, upon such an event of withdrawal of a general partner, by the remaining general partners agreeing to continue the partnership or by at least a majority in interest of the remaining partners agreeing to continue the partnership. See Glensder Textile Co. v. Commissioner, 46 B.T.A. 176 (1942), acq., 1942-1 C.B. 8.

In Glensder Textile, the court concluded that a limited partnership lacked continuity of life because upon the death, retirement, or incapacity of a general partner, the remaining general partners would have to agree to continue the partnership, and there was no assurance that they would do so. The court noted that the contingent continuity of a partnership was not analogous to the chartered life of a corporation, which continues regardless of the death or resignation of its directors or stockholders. Section 301.7701-2(b)(1) provides that a limited partnership lacks continuity of life even though a dissolution may be avoided by at least a majority in interest of the remaining partners agreeing to continue the partnership. Although the regulation and Glensder Textile specifically address the dissolution of a limited partnership, the contingent continuity of life concept reflected in the regulation and Glensder Textile applies in classifying LLCs.

Under the Act and M's articles of organization, M is dissolved upon the death, retirement, resignation, expulsion, bankruptcy, or dissolution of a member or the occurrence of any other event that terminates the continued membership of a member, unless all the remaining members agree to continue the business of M. Thus, if a member of M ceases to be a member of M for any reason, the continuity of M is not assured because all the remaining members must agree to continue the business. Consequently, M lacks the corporate characteristic of continuity of life.

Section 301.7701-2(c)(1) provides that an organization has the corporate characteristic of centralized management if any person (or group of persons that does not include all the members) has continuing exclusive authority to make management decisions necessary to the conduct of the business for which the organization was formed.

Section 301.7701-2(c)(2) provides that the persons who have this authority may, or may not, be members of the organization and may hold office as a result of a selection by the members from time to time, or may be self-perpetuating in office. Centralized management can be accomplished by election to office, by proxy appointment, or by any other means that has the effect of concentrating in a management group continuing exclusive authority to make management decisions.

Section 301.7701-2(c)(4) provides that there is no centralization of continuing exclusive authority to make management decisions, unless the managers have sole authority to make the decisions. For example, in the case of a corporation or a trust, the concentration of management powers in a board of directors or trustees effectively prevents a stockholder or a trust beneficiary, simply because that person is a stockholder or beneficiary, from binding the corporation or the trust.

Under the Act, an LLC may be managed either by an elected manager or managers or by its members. Under M's articles of organization and its operating agreement, M is managed exclusively by its elected managers A, B, and C. Therefore, M possesses the corporate characteristic of centralized management.

Section 301.7701-2(d)(1) provides that an organization has the corporate characteristic of limited liability if under local law there is no member who is personally liable for the debts of, or claims against, the organization. Personal liability means that a creditor of an organization may seek personal satisfaction from a member of the organization to the extent that the assets of the organization are insufficient to satisfy the creditor's claim.

Under the Act, the members of M are not liable for M's debts, obligations, or liabilities. Consequently, M possesses the corporate characteristic of limited liability.

Section 301.7701-2(e)(1) provides that an organization has the corporate characteristic of free transferability of interests if each of the members or those members owning substantially all of the interests in the organization have the power, without the consent of other members, to substitute for themselves in the same organization a person who is not a member of the organization. For this power of substitution to exist in the corporate sense, the member must be able, without the consent of other members, to confer upon the member's substitute all of the attributes of the member's interest in the organization. The characteristic of free transferability does not exist if each member can, without the consent of other members, assign only the right to share in the profits but cannot assign the right to participate in the management of the organization.

Under the Act and M's operating agreement, a member of M can transfer or assign that member's interest to another who is not a member of the organization. However, the assignee does not become a substitute member and does not acquire all the attributes of the member's interest in M unless all of the remaining members approve the transfer or assignment. Therefore, M lacks the corporate characteristic of free transferability of interests.

M has associates and an objective to carry on business and divide the gains therefrom. In addition, M possesses the corporate characteristics of centralized management and limited liability. M does not, however, possess the corporate characteristics of continuity of life and free transferability of interests.

HOLDING

M has associates and an objective to carry on business and divide the gains therefrom but lacks a preponderance of the four remaining corporate characteristics. Accordingly, M, a South Dakota LLC, is classified for federal tax purposes as a partnership under section 7701 of the Code.

DRAFTING INFORMATION

The principal author of this revenue ruling is John Kramer of the Office of Assistant Chief Counsel (Passthroughs and Special Industries). For further information regarding this revenue ruling contact John Kramer on (202) 622- 3060 (not a toll-free call).