by Mat Sorensen | Dec 5, 2023 | Entrepreneur
The new federal BOI reporting requirement has prompted an increase in dissolutions as business owners and investors are cleaning out entities they no longer use so that they will not have to complete the new BOI filing on these entities starting in 2024. The end of the year is an excellent time to consider whether you should dissolve an unused business entity. This is particularly important as we head into 2024 where LLCs and Corporations will be required to file a Business Ownership Information report with FinCEN identifying those persons who own 25% or more or who have substantial control in an entity. Failure to file a BOI report on an LLC or corporation will result in financial and criminal penalties. If you are a business owner or investor you need to analyze your entity structures and don’t forget the companies you may have left behind. Perhaps you have an LLC that once owned a rental property or an s-corporation that once operated a business. If there are no operations or assets in your entity and there is no intention to place new business or assets in the entity, then you should dissolve your entity. While there are some exceptions to the BOI filing for “inactive” entities established before January 1, 2020, we think it is best to clearly dissolve unused entities so that there is no question or requirement later on to prove that you meet the exception with FinCEN.
DISSOLUTION STEPS
Dissolution is the legal method of closing an entity and its registration with the state. Following dissolution, the entity is no longer active with the state and you cannot operate a business in the company name. Besides avoiding the new BOI requirement, there are a number of reasons to dissolve an inactive entity. First, dissolution will end annual on-going fees that are charged by the state. Second, dissolution and the filing of a final tax return (where applicable) for the company will end on-gong tax return reporting. This is of particular benefit to corporations and partnership LLCs as they are all required to file annual tax returns. And for single member LLCs we are now recommending that you send a letter to the IRS with your EIN stating that the LLC was dissolved so that the federal government is also notified of the dissolution and so that your EIN won’t get cross referenced with FinCEN. If the company ends up being dissolved after January 1st then you may end up being required to file a 2024 tax return for the company and may also be subject to 2024 state fees. And, if you don’t get it dissolved in 2024 you’ll have to comply with the new FinCEN BOI reporting requirements.
ASSET PROTECTION AFTER DISSOLUTION
If a claim or lawsuit is later filed against the dissolved entity, the corporate veil will still be available to protect the business owner’s personal assets from the business so long as the liability arose when the entity was in good standing. As a result, owners of a dissolved entity still receive liability protection from the company for liabilities that occurred when the entity was active and registered even if a lawsuit is brought later on when the entity has been dissolved.
A proper dissolution requires a filing with the state of organization/incorporation as well as the drafting or company minutes documenting the dissolution and wind down of the company. It also includes notifying the IRS whether that is on a final return or by letter. And lastly, you’ll want to close out any bank or merchant accounts associated with the entity. Remember, you will also want to inform your accountant as to the dissolution to insure that proper tax reporting is handled on your tax returns. Our law firm, KKOS Lawyers, can help get your entity dissolved properly in all 50 states and can also assist with your BOI compliance for on-going entities.
By: Mat Sorensen, Partner KKOS Lawyers and CEO Directed IRA & Directed Trust Company
by Mat Sorensen | Jul 8, 2019 | IRA/LLCs
Many self-directed IRA investors use an IRA/LLC (aka “checkbook-controlled IRA”) to hold their self-directed IRA investments. For an overview, see my video here. When using the IRA/LLC structure, the name of the LLC is on title to the assets, and the LLC’s bank account receives the income. As a result of this structure, the self-directed IRA owner may be asked by a title company, property management company, or other third-party to complete an IRS Form W-9 form for the IRA/LLC. Form W-9 is the document these parties request in order to issue 1099’s for rental income or for sale proceeds for real estate, stock, or other assets sold by the LLC. Form W-9 can be tricky and needs to be handled differently when you have a single-member IRA/LLC (i.e. when the IRA owns the LLC 100%) than when the LLC has two or more owners (aka “partnership”). It is important that the W-9 is completed properly so that the IRS does not confuse whether the LLC is owned by the IRA or by the IRA owner personally.
Single-Member IRA/LLC
The W-9 can be tricky to complete in the single-member IRA/LLC situation. Many IRA owners will include the LLC EIN in Part I of the form or will provide the owner’s SSN. Both of those answers are incorrect. I have provided a sample W-9 form for “ABC Investments, LLC” below:
Let’s go through each line to explain the responses. I’ll start on line 1.
- Name: In the instance of a single-member IRA/LLC, the IRS considers the LLC to be disregarded, which means that the LLC is not a separate taxable entity and instead the tax reporting goes directly to the owner. In this instance, the owner of the LLC is the IRA. Consequently, the name on line 1 should be the name of your IRA. If you have a self-directed IRA with our company, that name would be something like, “Directed Trust Company FBO John Doe IRA.”
- Business Name: Line 2 is where you will list the name of the LLC. So, for example, if your IRA/LLC is called “ABC Investments, LLC,” then you would provide that name on line 2.
- Tax Classification Box: This is the section that causes confusion and often results in incorrect selections. In this section you would check the first box, “Individual/sole proprietor, single-member LLC.” When the IRA owns the LLC 100%, the LLC is considered a single-member LLC.
- Exemptions: IRA/LLCs and IRAs are an exempt payee, and as a result, you should include Code 1 on the first blank space on line 4. See line 4 instruction on Code 1 for more details.
- Address: On line 5 and 6 you will include the mailing address for the LLC. Do not include your IRA custodian’s address as any 1099s for the IRA will be sent to the IRA custodian’s address. While most 1099s and tax reporting forms generated from a W-9 do not result in a reporting or tax obligation for the IRA, it is best that the IRA owner, who is responsible for the account and decisions, receive the 1099s at their address.
- Address (Cont’d): See line 5 response information above.
- List Account Number (Optional): You may include the IRA account number with your IRA custodian on line 7, but this is optional and is not required. If you have multiple IRAs with the same custodian, it would be helpful to also provide your account number for the specific accounts involved. Otherwise, if needed, the IRA is identifiable by the name line 1.
Part I
The next section is called Part I, and is the section where a social security number or employer identification number is used. This section is often completed incorrectly. The correct response is the EIN of party on Line 1. In this instance, Line 1 is the IRA. Most IRAs should not have their own EIN, and you should not obtain an EIN for the purpose of a W-9. You may have an EIN for your IRA because you have Unrelated Business Income Tax (UBIT) for your IRA (which is less common). However, most self-directed IRA custodians do not have an EIN for their IRA. Instead, what you should use is the reporting EIN of your IRA custodian. All IRA custodians have an EIN that is used for their customer accounts, and this EIN can be obtained by contacting your IRA custodian.
Most IRA/LLC owners have an EIN for their LLC and some will use that EIN in Part I. While that is the correct response in the multi-member IRA/LLC (“partnership”) context, it is not the correct response for the single member IRA/LLC. Another incorrect response on Part I is to use the social security number of the IRA owner. This is also incorrect as you do not personally own the LLC. An incorrect response on Part I doesn’t cause a prohibited transaction or disqualify the IRA, but it could create tax reporting confusions with the IRS.
Finally, the manager of the LLC would sign on Part II.
Multi-Member IRA/LLC
If your IRA/LLC has more than one owner, it is considered a multi-member IRA/LLC. Most multi-member IRA/LLCs are taxed as partnerships and as a result, the W-9 for a multi-member IRA/LLC is different from the single-member IRA/LLC.
The multi-member IRA/LLC is far more straightforward. I have provided a sample W-9 below. The important items for the W-9 in this instance are as follows:
- Line 1 is the name of the LLC: In a multi-member IRA/LLC, the entity files a tax return and is recognized at the LLC level by the IRS.
- Line 2 is blank as line 1 is the LLC name and they are the same.
- Check the box limited liability company and then indicate letter “P” for partnership.
- Skip the exemption code since the LLC itself has its own tax status (partnership usually). Even though it may be owned by IRAs the exemption doesn’t apply at the LLC level.
- Include the LLC mailing address.
- Continued mailing address.
- There is no need to list the account numbers of the IRAs here as the taxable entity itself is the LLC – not the IRAs – and there isn’t an account number for the LLC.
Part I
The LLC’s EIN should be used and provided in the box for employer identification number. Since a multi-member LLC is taxable itself as an entity (partnership return), it provides its own EIN for reporting uses on the W-9. The IRA custodian’s EIN is not used in this instance.