By On Aug 14, 2019 Templates
Pass-Through Taxation for Single and Multimember LLCs Another advantage of an LLC is the owners ability to enjoy the benefits of pass-through taxation. In 1988, the IRS released Revenue Ruling 88-76 which declared that Wyoming LLCs would be taxed as partnerships even though they provide for corporate-like protection against liability. C corporations, in contrast, are subject to double taxation—once at the corporate level and again when dividends are distributed to shareholders. While the owners of corporations can achieve pass-through taxation by making an S election, S corporations are subject to many other restrictions and requirements that limit their utility in the real estate investment realm. The 1988 revenue ruling was a true game-changer because it enabled real estate investors to avoid double taxation by acquiring property through an LLC while enjoying a liability shield. Under the default tax classification rules, the IRS classifies a real estate holding company with one owner as they would a sole proprietorship, namely as a disregarded entity. As a result, income and capital gains from the LLC pass through directly to the owner, who would only have to pay taxes as an individual, while still enjoying the protections offered by the LLC liability shield. Since there is no separate LLC tax, the owner can avoid double taxation on both the rental income generated by the property and the appreciation in value of the property upon disposition. Moreover, the owner of a single-member LLC can deduct mortgage interest similar to a sole proprietor based on current IRS rules. Real estate holding companies that have several owners are known as multimember LLCs and are generally taxed by the IRS like partnerships, meaning that the LLC files an informational tax return, but does not actually pay taxes itself. Multimember LLCs also enjoy the benefits of pass-through taxation as the LLC passes its profits and losses through to its members, who report their portion of the LLCs business income or losses on either a Schedule C, K or Form 1065 with their individual income tax returns. This means that both single member and multimember LLCs offer the benefits of pass-through taxation of profits and losses and limited liability and personal protection for the owners.
Many business owners choose to form an LLC because they are unfamiliar with the many legal nuances between different entity choices, and they simply assume that an LLC offers the most protection from risk because it has limited liability in its name. In reality, a properly formed and operated LLC does indeed limit the personal liability of the owners, as much as U.S. law allows, by affording the owners no personal risk above and beyond their investment in the company-but, in many instances, so do corporations and certain partnerships. Of course if a small business owner of any entity form fails to respect the separate and distinct identity of the business or observe statutorily required corporate formalities (such as co-mingling personal and business funds, paying owners instead of creditors, or failing to maintain a registered agent), the integrity of the corporate shield provided by law will be compromised and potentially expose the owners to personal liability. Generally speaking, though, the basic requirements to operate an LLC within the confines of the corporate statutes are not particularly onerous.
Although there are many benefits to holding real property assets through an LLC, a limited liability company may not be the best holding vehicle for every property owner. For many real estate investors, the trouble of forming and maintaining a company is not worth protection from the theoretical threat of a lawsuit, particularly when affordable liability insurance is available. That said, real estate investors that rely solely on insurance as a means of protection from personal liability take a significant risk. Liability policies typically have limits, exceptions and carve-outs. While the chance of a loss that exceeds policy limits may be remote, if it happens, the consequences can be devastating. Under current laws and market trends, the popularity of real estate holding LLCs is very likely to continue to increase as more and more property owners seek to take advantage of the benefits offered by this form of entity.
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