Beginning in the late 1980s, various states began exploring a hybrid entity, one in which co-owners would enjoy the liability protection of limited partner status and the management participation feature of the general partners. Wyoming was the first state to enact its limited liability company statute and many states quickly followed suit. Indiana adopted its limited liability company statute, known as the Indiana Business Flexibility Act, in 1993.

Most of the characteristics of a partnership are shared by the limited liability company. The company is formed upon filing articles of organization with the Secretary of State’s office; rights and responsibilities are spelled out in a written operating agreement; the interests are freely transferable (though again, the transferee does not automatically become a member in the company); and the entity itself usually does not pay any tax, although some states other than Indiana do subject limited liability companies to franchise taxes.

A major difference between a partnership and a limited liability company is that each of its members enjoys liability protection. Another major difference is that in recent years, most states have recognized limited liability companies with only one owner. This means that you can protect yourself from personal liability and yet still operate your business, in many ways, as you would a sole proprietorship (presuming you comply with the formalities of the limited liability company). These so-called “single member LLCs” offer an important tax advantage—annual information can be reported on the owner’s individual tax return, and no separate tax return or identification number is required.

A limited liability company can either be managed by its members, or the members may select one or more managers (e.g., a board of managers similar to a corporate board of directors) to run the business. Most states will require you to decide upfront how the company will be managed. All things being equal, most business owners will choose the limited liability company form over the partnership form. However, things are almost never equal and nuances do exist. It is important to discuss these details with your attorney.

The Law Office of Brian V Powers works with new and prospective business owners to aid in the purchase, structuring and formation of a new business. We also provide convenient, fixed pricing for certain business formation legal services.  Contact us today at inquiries@bvplegal.com for help forming your Indiana Limited Liability Company.

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A partnership is an association of two or more persons to carry on as co-owners of a business for profit. This means that a partnership can often arise automatically when you and one or more co-venturers start conducting business together. In most cases, you will want to spell out the rights and obligations between you and your partners in a legal document known as a partnership agreement. For example, the partnership agreement will provide that each partner is entitled to a certain percentage of the profits and/or losses from the business.

In general, as a partner, you can sell or assign your interest in the partnership, and that transfer does not cause the partnership to dissolve. However, the transferee of your interest does not automatically become a partner. Rather, the transferee is merely entitled to a share of the profits and certain rights upon liquidation. To replace you in the partnership, that transferee must be admitted as a partner, usually by vote of the remaining partners. Interesting partnership issues can arise in the context of intellectual property protection. For example, where one partner invents certain patentable technology, absent an agreement to the contrary, it is not entirely clear whether the partnership itself is entitled to use the technology. This could potentially result in one partner having unforeseen leverage over his co-owner(s).

Nearly all partnerships are non-taxable entities; that is, while the partnership files certain tax returns, the partnership itself does not pay any federal, Indiana, or local taxes. What is more, you can typically make contributions to and take distributions from the partnership in a tax-free manner. For this reason, many business owners will choose the simplicity of the partnership form over a corporation.

A general partnership will not provide you or your partners with liability protection. Creditors can and often do look to the assets you own individually to satisfy liabilities. However, there is a special type of partnership known as a limited partnership. In this type of partnership, there are two types of partners; the general partners, who manage the affairs of the partnership, and the limited partners, who do not participate in the management. In a limited partnership, the general partners’ individual assets are subject to creditor claims, but the limited partners enjoy liability protection. Absent unusual circumstances, the most a limited partner stands to lose in the business enterprise is the partner’s capital investment.

A limited partnership is subject to a slightly higher degree of formality in that it must file a certificate of limited partnership with the Indiana Secretary of State before it can be formed.

My entrepreneurial law / start-up law practice helps clients choose the appropriate type of partnership, form partnerships, and draft partnership agreements.  Contact Indianapolis business attorney Brian Powers for help with your partnership.