Asset Protection and Corporate Formation

The following article by asset protection guru – Robert J. Mintz from California – is very instructive to Lake Norman Law Firm clients, both those that are operating as an LLC, and those looking to utilize an LLC or other corporate form as an estate protection tool. We spend time with every client to ensure that they understand what Attorney Mintz is discussing – LLCs with all their might and utility are still prone to a crafty plaintiff or creditor if some basic rules are not followed. However, if LLC managers / members simply get in the routine of keeping their LLC separate from their own identity – avoiding personal liability is easy. Enjoy the article, and if you have questions please contact Lake Norman Law Firm

Piercing the LLC Veil

Why LLCs Aren’t Bulletproof

By Robert J. Mintz, JD.

Many people use Limited Liability Companies to hold investment assets and real estate or to operate a business. LLC’s are generally easier to form than corporations, have fewer formal operating requirements and offer a greater variety of tax planning options.

Limiting Personal Liability

Most importantly for some, the basic tenet of LLC law is that members and managers of the LLC are not personally liable for the debts of the company. This is known in legal terms as limited liability and it prevents a creditor of an LLC (or a corporation) from pursuing the personal assets of an owner. The problem is that the purported protection of the LLC law is often and increasingly disregarded by the courts under a variety of legal theories leaving personal assets exposed and unprotected from business risks – exactly the result that the owner was attempting to avoid. In this month’s article we’ll address the reasons why the courts are reaching these surprising conclusions and what steps can individuals take to protect themselves from unexpected and possibly significant financial losses.

This limitation on liability is a crucial factor in operating or investing in a business venture. An investor wants certainty that personal assets, not invested in the business, are free from any potential claims which might arise. The concept of limited liability permits an individual to calculate the extent of the financial risk which is being assumed in relation to potential profits from the business. If a particular project involves a fixed investment of $100,000 then the risk and potential returns can be estimated and a rational decision about the value of the investment is possible. Limitations on personal liability are a foundation of any market economy because no individual or company would knowingly make an investment if the total cost of the investment, including potential liabilities, could not be reasonably calculated in advance.

For example, suppose that the initial $100,000 amount invested in the business was not limited in any manner and instead the total amount of the investors net worth – everything that the investor owned – was subject to a future claim of the business? That proposition is difficult or impossible to evaluate because in this case, the amount of the investment and potential liabilities cannot be accurately measured in advance and the value of the investment is uncertain. Individuals are justifiably reluctant to make investments which place all of their personal assets at risk and the typical solution is to use an LLC or corporation which is intended to limit this exposure.

Piercing the Corporate Veil

Corporate Formalities

The ability of a lawsuit plaintiff to reach the personal assets of the business owner is known as piercing the corporate veil. Prior to the widespread adoption of LLC legislation in all states in the early 1990’s, corporations were the most widely used form of business entity. But corporations had some glaring defects in accomplishing this essential mission of limiting personal liability. Most notably, over the years, courts tended to weaken the corporate liability shield under a variety of legal theories. Thousands of cases on these issues have been decided and broad rights have developed for those seeking to “pierce the corporate veil” and hold the owners personally liable.

One legal ground for piercing is failure to follow corporate formalities. For example, corporations have certain legal formalities which must be adhered to, such as issuing shares, holding annual meetings, preparing minutes, and creating and maintaining governing bylaws. In cases where these formalities are not properly followed, courts have held that the legal liability protection of the shareholders was effectively waived and the personal assets of the owners could be reached by the plaintiff. This result is most likely to occur in smaller, family owned businesses, which tend to be less diligent in maintaining the corporate records than larger companies with the resources and staff necessary to meet filing and compliance requirements.

Alter Ego

A second rational for piercing the corporation veil is based on what is known as alter ego liability. What this means is that when an individual and a company are so closely linked that they should not be viewed as separate entities for legal purposes, the shield against personal liability will not be applied.

Over the years, courts have enumerated dozens of factors that should be considered in making this determination. Some of those examples mentioned frequently in the cases include: (1) commingling of funds and other assets, (2) the treatment by an individual of the assets of the corporation as his own, (3) the failure to maintain minutes or adequate corporate records, (4) the use of the same office or business location, employment of the same employees and/or attorney, (5) the failure to adequately capitalize a corporation, and (6) the use of a corporation for a single venture.

In making the determination under the alter ego test, the law is that no single factor is determinative, and instead a court must examine all the circumstances to determine whether to apply the doctrine. In reality, what this means is that in almost any situation, a finding of alter ego liability can be made depending on the outcome that the court would like to produce. There are very few circumstances under which at least one or more of the dozens of factors have not been violated at some point. Small businesses sometimes treat corporate formalities, written minutes and banking in a more casual manner than larger companies with staff and resources. Since there are so many factors which can be considered and the proper weight to be given to any particular factor is left entirely to the courts discretion, it is too often the case that if a court wishes to find alter ego liability, it is easy enough to do so. A reading of the cases demonstrates that similar fact patterns produce dramatically different results based on the particular conclusion which the court is attempting to shape. The outcome depends less on the conduct of the parties than it does on the courts view of what a just or fair result should be.

Piercing the LLC Veil

What we have described above about piercing the corporate veil applies as well to Limited Liability Companies. LLC law in the states as expressed in the legislation and court cases generally permits piercing of the LLC veil to the same extent as corporate law. Although LLC formalities are sometimes not as strict as those of corporations, when the alter ego doctrine is asserted, a failure to hold annual meetings and maintain adequate company records may influence the court’s decision on personal liability protection.

One of the unfortunate byproducts of the uncertainty surrounding the application of the law is an inevitable increase in the number of cases filed against LLCs and their owners. In fact, merely filing these cases, without much regard to merit, may be a profitable business strategy in itself. Lawyers and lawsuit plaintiffs take advantage of the unpredictable outcome of any case by routinely naming the owner as a defendant in litigation against the LLC. This move immediately places the owner’s personal assets in jeopardy since he or she is threatened with potentially large legal costs as well as a real loss of personal assets if the plaintiff is successful. Depending on the size of the claim and the amount of the defendant’s available wealth, plaintiffs and their lawyers know that there is usually strong motivation for the owner to settle to avoid litigation costs as well as the possibility of an unfavorable outcome in the case, When a legal outcome is uncertain, as it is in most veil piercing cases, plaintiffs lawyers working on a contingent fee have significant bargaining leverage over an LLC owner who must bear the costs of defending the litigation and the possibility of large personal losses.

How to Protect against Personal Liability

The first step to avoiding personal liability in these cases is to comply with the legal requirements concerning company formalities and operations as described in the cases and legislation. This certainly means that the initial organizational filings, IRS compliance and operating documents and procedures for the company are correct and properly maintained. The company should be adequately capitalized for its purpose and commingling of accounts, and undocumented contributions and distributions should be avoided. Following these legal requirements won’t guarantee success, but depending on the facts of your case, may help tilt the scales toward avoiding personal liability.

As an additional safety measure, many physicians use asset protection plannactivities. This legal planning generally involves the use of strategies such as retirement plans, trusts and holding companies to protect assets such as homes, savings and investments. A full description of the asset protection techniques and planning used by physicians can be found at “Legal Guide to Asset Protection Planning.”

Taking the proper steps to minimize the risks of your practice and business makes sense for those who have accumulated savings and investments. If these assets are intended to be held separately and apart from the liabilities of your business activities then some planning to accomplish this result should be considered. As a note of caution, make sure to discuss the details of your particular matters with your advisors to make sure that the tax and ramifications of your planning strategies are properly evaluated and are appropriate for your specific situation.

ing to insulate and shield personal assets from the risks of their medical practice or from the other sources of liability which may arise from business or investment