Limited liability is an important advantage provided by corporations and limited liability companies (LLCs). The personal asset protection that corporations and LLCs provide for their owners, however, is not absolute. To maintain the liability shield, owners must comply with certain corporate formalities required by state law or recommended as a best practice. In addition, observing these formalities is a means of providing the accurate documentation and records needed for a business to operate successfully.
Limiting Personal Liability
Under some circumstances, the owners of a corporation or the members of an LLC can lose their limited liability protection and be held personally responsible for the obligations or debts of their business. This is known as “piercing the corporate veil.”
Without the liability shield that establishes corporations and LLCs as legal entities separate and distinct from their owners, many individuals would not engage in business due to fears of being held personally responsible for a business’s actions, debts, and obligations.
LLCs are generally subject to fewer legal formalities than corporations. However, for both types of entities, following basic operating procedures such as holding meetings, keeping records, and establishing separate bank accounts for the business helps to maintain the liability shield. These formalities also help establish that a business is a distinct legal entity separate from its owners, which precludes creditors from pursuing the owners to satisfy the business’s debts or obligations.
Maintaining Accurate Business Records
While maintaining a corporation’s or LLC’s separate entity status is arguably the most important reason to observe corporate formalities, it is not the only reason. Corporate formalities also help create and maintain the body of information, data, knowledge, and experience that a company accumulates and needs to maintain for its future operations.
These records are a valuable business asset with numerous applications, including the following:
- Innovation and problem-solving: Corporate records can help organizations identify patterns and trends that could lead to the development of new products, services, and business models.
- Informed decision-making: Business documentation can be used to make informed decisions based on data and records.
- Improved collaboration: Good recordkeeping enables workers to share information and learn from each other.
- Tracking progress and forecasting: Careful documentation is useful for tracking the long-term progress of prior plans and proposals and making more reliable predictions and forecasts.
- Business continuity: Corporate records document insider knowledge, promoting continuity of operations when there is employee and leadership turnover.
- Legal disputes: If a legal dispute arises between the business and an outside party or among owners, corporate records can provide key evidence (e.g., what was said in a meeting or the specifics of a financial transaction).
- Tax matters: Detailed business records are indispensable for tax planning and payment.
- Proof of compliance: A business may need to demonstrate its compliance with legal obligations to various governmental bodies, including local licensing agencies, the state attorney general’s office, and the Internal Revenue Service.
How to Maintain Corporate Formalities
Corporations
It is the responsibility of a corporation to observe the formalities required by the state(s) in which they operate. The following are some formalities that corporations typically must comply with:
- Establish and follow bylaws, which are a set of internal rules that govern how the corporation is run.
- Hold annual shareholder meetings at least once a year to elect directors.
- Hold board of director meetings—usually on a quarterly basis.
- Keep meeting minutes that record who attended, the topics discussed, and the decisions made.
- Maintain a stock ledger and issue stock certificates listing each individual shareholder’s name, address, and contact information.
- Open a corporate bank account separate from the business owners’ bank accounts.
- Register a business name, a trade name, or a “doing business as” (DBA) name that the business uses in addition to its corporate name.
- Maintain business records documenting all corporate activities, including notes from shareholder meetings, corporate tax filings, and corporate documents.
LLCs
Many corporate formalities are not required for LLCs but are considered best practices and are highly recommended.
For example, most states’ LLC statutes do not require LLCs to hold formal meetings or record minutes when meetings are held. LLCs are also not obligated to have a board of directors or, except in a handful of states, to create an operating agreement—the equivalent of corporate bylaws for an LLC.
Failure to observe the following LLC best practices could threaten the liability shield and result in inadequate business records:
- Conduct business in the LLC’s name and not in the name of the individual members.
- Maintain a company bank account and not commingle personal and business funds.
- Establish a capital account for each LLC member that documents their investment, contributions, distributions, and membership interest percentage.
- Keep accurate and detailed records of all financial transactions, dating back at least three years, including paid bills, invoices, bank deposits, credit card statements, business contracts, income tax returns, and employee records.
- Create an operating agreement that outlines the duties and responsibilities of the members.
- Hold regular meetings and take minutes to document attendance, voting results, and discussion topics.
Call Us Today
A business attorney who understands the law and the risks that businesses face can help owners ensure they are observing the formalities necessary to protect themselves against personal liability for the business’s obligations and debts. Schedule an appointment with the Law Office of Jason Carr today for more information.
