Should you give some of your LLC away?

October 10, 2013, by

father walking daughter.jpgCPA Lars got rich uncle Nils's real estate into family partnerships in the early days of that device's popularity. Being in the financial business with a lot of wealthy clients, Lars got exposed to the advantages. Even the early limited partnerships offered asset protection, at least for those limited partners who weren't also the general partner. When limited liability companies were authorized they offered even the general partner (now to be called the manager) a shield. Lars has helped Nils to convert his LPs to LLCs with little cost or tax effect.

LLCs also offer a good way of making gifts to save estate taxes. The founder is usually a manager, and can keep control of the investment despite having given away shares of ownership. Part of the appeal is in the valuation of the gifts. A 5% interest in an LLC with a $2 million building would seem to be worth $100,000. But you couldn't sell it for that, because a new 5% owner would have little control over the fate of his investment, and a scant market for unloading it. So an appraiser might say it's a $70,000 gift, thus saving $30,000 of the donor's gift tax exemption. Some call this a "discount," but it's just the reality of the value of the interest given.

The IRS doesn't like family LLCs, largely because they allow an efficient reduction of taxable wealth. They often attack these arrangements on the notion the founder kept such tight control over everything that he or she still owns it all, even though documents were signed giving ownership to others. There are a number of ways to blunt that IRS argument in the documents and operations of the LLC. One of them is for the founder not to be the sole manager, or even better, to at some point cease to be a manager at all. Of course this is hard for founders who have control issues, as many successful people do.

So despite IRS challenges a well-formed and properly-operated family LLC can help, by gifts of interests, to reduce estate taxes. It turns out that sharing ownership helps with liability protection as well. If a creditor or divorcing spouse tries to take an LLC interest, this third party is generally limited to a "charging order" that doesn't actually grant the interest but only entitles the claimant to any distributions made to the holder of it. Courts are less likely to limit the remedy to this, if the LLC has only one owner.

So gifts are good in more than one way, if you can afford them.