Tax Uncertainties

Ask your CPA, many tax questions with regard to series LLCs remain unanswered. So far, the IRS has only issued one Private Letter Ruling in 2008 that clarified that each series’ federal tax characterization is determined independently. Many other state and federal tax questions remain unanswered.

Bankruptcy Uncertainties

It is unclear whether an LLC series will be treated as a debtor in federal bankruptcy court, or whether the bankruptcy court will ignore the series and only consider the entire LLC. The result may depend on whether the relevant state law will treat the series as a separate entity with its own liability shield, but at this point nobody knows.

Uncertainties About Doing Business in Other States

Including Texas there are now only 8 states with LLC acts that authorize Series LLCs, leaving 42 states without Series LLC provisions on their books. It is uncertain how the courts in a non-series state would react to a claim by a local creditor against an out-of-state series LLC. Will the non-series state honor the series structure and respect the series liability shield? Will a non-series state even allow an out-of-state series LLC to register as a foreign entity?

Not Endorsed by the ABA

The American Bar Association’s (ABA) National Conference of Commissioners on Uniform State Laws spent three years examining proposed changes regarding Series LLCs. During these studies they noted that the Series LLC originated in Delaware for use in mutual fund and structured finance transactions, which prompted them to publicly state:

“What’s good for Delaware and highly sophisticated deals is not necessarily good for the LLC law of other states. A philosophy that works wonders for ‘high end’ transactions may be bad medicine for the thousands of more prosaic but nonetheless important closely held businesses that choose to house themselves within the LLCs.”

SUBCHAPTER M. SERIES LIMITED LIABILITY COMPANY

Sec. 101.601. SERIES OF MEMBERS, MANAGERS, MEMBERSHIP INTERESTS, OR ASSETS.

(a) A company agreement may establish or provide for the establishment of one or more designated series of members, managers, membership interests, or assets that:

      (1) has separate rights, powers, or duties with respect to specified property or obligations of the limited liability company or profits and losses associated with specified property or obligations; or

      (2) has a separate business purpose or investment objective.

(b) A series established in accordance with Subsection (a) may carry on any business, purpose, or activity, whether or not for
profit, that is not prohibited by Section 2.003.

Sec. 101.602. ENFORCEABILITY OF OBLIGATIONS AND EXPENSES OF SERIES AGAINST ASSETS.

(a) Notwithstanding any other provision of this chapter or any other law, but subject to Subsection (b) and any other provision of this subchapter:

      (1) the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with respect to a
particular series shall be enforceable against the assets of that series only, and shall not be enforceable against the assets of the limited liability company generally or any other series; and

      (2) none of the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with
respect to the limited liability company generally or any other series shall be enforceable against the assets of a particular series.

(b) Subsection (a) applies only if:

      (1) the records maintained for that particular series account for the assets associated with that series separately from the other assets of the company or any other series;

      (2) the company agreement contains a statement to the effect of the limitations provided in Subsection (a); and

      (3) the company’s certificate of formation contains a notice of the limitations provided in Subsection (a).

Sec. 101.603. ASSETS OF SERIES.

(a) Assets associated with a series may be held directly or indirectly, including being held in the name of the series, in the name of the limited liability company, through a nominee, or otherwise.

(b) If the records of a series are maintained in a manner so that the assets of the series can be reasonably identified by specific listing, category, type, quantity, or computational or allocational formula or procedure, including a percentage or share of any assets, or by any other method in which the identity of the assets can be objectively determined, the records are considered to satisfy the requirements of Section 101.602(b)(1).

Sec. 101.604. NOTICE OF LIMITATION ON LIABILITIES OF SERIES.

Notice of the limitation on liabilities of a series required by Section 101.602 that is contained in a certificate of formation filed with the secretary of state satisfies the requirements of Section 101.602(b)(3), regardless of whether:

      (1) the limited liability company has established any series under this subchapter when the notice is contained in the certificate of formation; and

      (2) the notice makes a reference to a specific series of the limited liability company.

Sec. 101.605. GENERAL POWERS OF SERIES.

A series established under this subchapter has the power and capacity, in the series’ own name, to:

      (1) sue and be sued;

      (2) contract;

      (3) hold title to assets of the series, including real property, personal property, and intangible property; and

      (4) grant liens and security interests in assets of the series.

Sec. 101.606. LIABILITY OF MEMBER OR MANAGER FOR OBLIGATIONS; DUTIES.

(a) Except as and to the extent the company agreement specifically provides otherwise, a member or manager associated with a series or a member or manager of the company is not liable for a debt, obligation, or liability of a series, including a debt, obligation, or liability under a judgment, decree, or court order.

(b) The company agreement may expand or restrict any duties, including fiduciary duties, and related liabilities that a member,
manager, officer, or other person associated with a series has to:

      (1) the series or the company;

      (2) a member or manager associated with the series; or

      (3) a member or manager of the company.

Sec. 101.607. CLASS OR GROUP OF MEMBERS OR MANAGERS.

(a) The company agreement may:

      (1) establish classes or groups of one or more members or managers associated with a series each of which has certain express relative rights, powers, and duties, including voting rights; and

      (2) provide for the manner of establishing additional classes or groups of one or more members or managers associated with the series each of which has certain express rights, powers, and duties, including providing for voting rights and rights, powers,
and duties senior to existing classes and groups of members or managers associated with the series.

(b) The company agreement may provide for the taking of an action, including the amendment of the company agreement, without the vote or approval of any member or manager or class or group of members or managers, to create under the provisions of the company agreement a class or group of the series of membership interests that was not previously outstanding.

(c) The company agreement may provide that:

      (1) all or certain identified members or managers or a specified class or group of the members or managers associated with a series have the right to vote on any matter separately or with all or any class or group of the members or managers associated with the
series;

      (2) any member or class or group of members associated with a series has no voting rights; and

      (3) voting by members or managers associated with a series is on a per capita, number, financial interest, class,
group, or any other basis.

Sec. 101.608. GOVERNING AUTHORITY.

(a) Notwithstanding any conflicting provision of the certificate of formation of a limited liability company, the governing authority of a series consists of the managers or members associated with the series as provided in the company agreement.

(b) If the company agreement does not provide for the governing authority of the series, the governing authority of the series consists of:

      (1) the managers associated with the series, if the company’s certificate of formation states that the company will
have one or more managers; or

      (2) the members associated with the series, if the company’s certificate of formation states that the company will not have managers.

Sec. 101.609. APPLICABILITY OF OTHER PROVISIONS OF CHAPTER; SYNONYMOUS TERMS.

(a) To the extent not inconsistent with this subchapter, this chapter applies to a series and its associated members and managers.

(b) For purposes of the application of any other provision of this chapter to a provision of this subchapter, and as the context requires:

      (1) a reference to “limited liability company” or “company” means the “series”;

      (2) a reference to “member” means “member associated with the series”; and

      (3) a reference to “manager” means “manager associated with the series.”

Sec. 101.610. EFFECT OF CERTAIN EVENT ON MANAGER OR MEMBER.

(a) An event that under this chapter or the company agreement causes a manager to cease to be a manager with respect to a series does not, in and of itself, cause the manager to cease to be a manager of the limited liability company or with respect to any other series of the company.

(b) An event that under this chapter or the company agreement causes a member to cease to be associated with a series does not, in and of itself, cause the member to cease to be associated with any other series or terminate the continued membership of a member in the limited liability company or require the winding up of the series, regardless of whether the member was the last remaining member associated with the series.

Sec. 101.611. MEMBER STATUS WITH RESPECT TO DISTRIBUTION.

(a) Subject to Sections 101.613, 101.617, 101.618, 101.619, and 101.620, when a member associated with a series established under this subchapter is entitled to receive a distribution with respect to the series, the member, with respect to the distribution, has the same status as a creditor of the series and is entitled to any remedy available to a creditor of the series.

(b) Section 101.207 does not apply to a distribution with respect to the series.

Sec. 101.612. RECORD DATE FOR ALLOCATIONS AND DISTRIBUTIONS.

A company agreement may establish or provide for the establishment of a record date for allocations and distributions with respect to a series.

Sec. 101.613. DISTRIBUTIONS.

(a) A limited liability company may make a distribution with respect to a series.

(b) A limited liability company may not make a distribution with respect to a series to a member if, immediately after making the distribution, the total amount of the liabilities of the series, other than liabilities described by Subsection (c), exceeds the fair value of the assets associated with the series.

(c) For purposes of Subsection (b), the liabilities of a series do not include:

      (1) a liability related to the member’s membership interest; or

      (2) except as provided by Subsection (e), a liability of the series for which the recourse of creditors is limited to specified property of the series.

(d) For purposes of Subsection (b), the assets associated with a series include the fair value of property of the series subject to a liability for which recourse of creditors is limited to specified property of the series only if the fair value of that property exceeds the liability.

(e) A member who receives a distribution from a series in violation of this section is not required to return the distribution to the series unless the member had knowledge of the violation.

(f) This section may not be construed to affect the obligation of a member to return a distribution to the series under
the company agreement or other state or federal law.

(g) Section 101.206 does not apply to a distribution with respect to a series.

(h) For purposes of this section, “distribution” does not include an amount constituting reasonable compensation for present or past services or a reasonable payment made in the ordinary course of business under a bona fide retirement plan or other benefits program.

Sec. 101.614. AUTHORITY TO WIND UP AND TERMINATE SERIES.

Except to the extent otherwise provided in the company agreement and subject to Sections 101.617, 101.618, 101.619, and 101.620, a series and its business and affairs may be wound up and terminated without causing the winding up of the limited liability company.

Sec. 101.615. TERMINATION OF SERIES.

(a) Except as otherwise provided by Sections 101.617, 101.618, 101.619, and 101.620, the series terminates on the completion of the winding up of the business and affairs of the series in accordance with Sections 101.617, 101.618, 101.619, and 101.620.

(b) The limited liability company shall provide notice of the termination of a series in the manner provided in the company agreement for notice of termination, if any.

(c) The termination of the series does not affect the limitation on liabilities of the series provided by Section 101.602.

Sec. 101.616. EVENT REQUIRING WINDING UP.

Subject to Sections 101.617, 101.618, 101.619, and 101.620, the business and affairs of a series are required to be wound up:

      (1) if the winding up of the limited liability company is required under Section 101.552(a) or Chapter 11; or

      (2) on the earlier of:

            (A) the time specified for winding up the series in the company agreement;

            (B) the occurrence of an event specified with respect to the series in the company agreement;

            (C) the occurrence of a majority vote of all of the members associated with the series approving the winding up of the series or, if there is more than one class or group of members associated with the series, a majority vote of the members of each class or group of members associated with the series approving the winding up of the series;

            (D) if the series has no members, the occurrence of a majority vote of all of the managers associated with the series approving the winding up of the series or, if there is more than one class or group of managers associated with the series, a majority vote of the managers of each class or group of managers associated with the series approving the winding up of the series; or

            (E) a determination by a court in accordance with Section 101.621.

Sec. 101.617. PROCEDURES FOR WINDING UP AND TERMINATION OF SERIES.

(a) The following provisions apply to a series and the associated members and managers of the series:

      (1) Subchapters A, G, H, and I, Chapter 11; and

      (2) Subchapter B, Chapter 11, other than Sections 11.051, 11.056, 11.057, 11.058, and 11.059.

(b) For purposes of the application of Chapter 11 to a series and as the context requires:

      (1) a reference to “domestic entity,” “filing entity,” or “entity” means the “series”;

      (2) a reference to an “owner” means a “member associated with the series”;

      (3) a reference to the “governing authority” or a “governing person” means the “governing authority associated with
the series” or a “governing person associated with the series”; and

      (4) a reference to “business,” “property,” “obligations,” or “liabilities” means the “business associated
with the series,” “property associated with the series,” “obligations associated with the series,” or “liabilities associated with the series.”

(c) After the occurrence of an event requiring winding up of a series under Section 101.616, unless a revocation as provided by
Section 101.618 or a cancellation as provided by Section 101.619 occurs, the winding up of the series must be carried out by:

      (1) the governing authority of the series or one or more persons, including a governing person, designated by:

            (A) the governing authority of the series;

            (B) the members associated with the series; or

            (C) the company agreement; or

      (2) a person appointed by the court to carry out the winding up of the series under Section 11.054, 11.405, 11.409, or 11.410.

(d) An action taken in accordance with this section does not affect the limitation on liability of members and managers provided by Section 101.606.

Sec. 101.618. REVOCATION OF VOLUNTARY WINDING UP.

Before the termination of the series takes effect, a voluntary decision to wind up the series under Section 101.616(2)(C) or (D) may be revoked by:

      (1) a majority vote of all of the members associated with the series approving the revocation or, if there is more than one class or group of members associated with the series, a majority vote of the members of each class or group of members associated with the series approving the revocation; or

      (2) if the series has no members, a majority vote of all the managers associated with the series approving the
revocation or, if there is more than one class or group of managers associated with the series, a majority vote of the managers of each class or group of managers associated with the series approving the revocation.

Sec. 101.619. CANCELLATION OF EVENT REQUIRING WINDING UP.

(a) Unless the cancellation is prohibited by the company agreement, an event requiring winding up of the series under Section 101.616(1) or (2) may be canceled by the consent of all of the members of the series before the termination of the series takes effect.

(b) In connection with the cancellation, the members must amend the company agreement to:

      (1) eliminate or extend the time specified for the series if the event requiring winding up of the series occurred
under Section 101.616(1); or

      (2) eliminate or revise the event specified with respect to the series if the event requiring winding up of the
series occurred under Section 101.616(2).

Sec. 101.620. CONTINUATION OF BUSINESS.

The series may continue its business following the revocation under Section 101.618 or the cancellation under Section 101.619.

Sec. 101.621. WINDING UP BY COURT ORDER.

A district court in the county in which the registered office or principal place of business in this state of a domestic limited liability company is
located, on application by or for a member associated with the series, has jurisdiction to order the winding up and termination of a series if the court determines that it is not reasonably practicable to carry on the business of the series in conformity with the company agreement.

The Texas Series LLC is a special form of a limited liability company that provides liability protection across multiple series, each of which is theoretically protected from liabilities arising from the other series. Essentially, a Texas Series LLC contains one or more subsidiary LLCs set up under the one parent LLC; comparable to structure of a corporation with several subsidiaries. The Texas Series LLC is essentially a single umbrella entity that has the ability to partition its assets and liabilities among various sub-LLCs or series. Each sub-LLC may have different assets, economic structures, members, and managers. The profits, losses, and liabilities of each series are legally separate from the other series.

Example

For example, Parent LLC has three series: A, B, and C. As long as each series “(1) has separate rights, powers, or duties with respect to specified property or obligations of the limited liability company or profits and losses associated with specified property or obligations; or (2) has a separate business purposes or investment objective” only the liabilities of A can be enforced against the assets of A, only the liabilities of B can be enforced against the assets of B, and only the liabilities of C can be enforced against C. The liabilities of one particular series can not be enforced against the assets of one of the other series or Parent, LLC.

Why use a Texas Series LLC?

Series LLC’s are ideal for the advanced planning of complicated business arrangements commonly found in hedge funds, venture capital funds, oil and gas deals, real estate projects, and fractional share arrangements. One major benefit of setting up a Texas Series LLC is that you only incur one state filing fee for the parent LLC, no matter how many series the parent LLC has. By separating the assets and liabilities of each series, you can avoid many of the inefficiencies and costs associated with multiple related entities. For example, a series LLC could be used to hold multiple parcels of real estate, each in a separate series and all within the one parent LLC. In another example, separate divisions of a business could be held by one LLC, with each division in its own separate series.

Where did it come from?

The Texas Business Organizations Code (TXBOC) – Subchapter M – Sections 101.601 through 101.621 created a new Texas entity type known as a Texas Series Limited Liability Company or Texas Series LLC. Nationwide, the concept of the Series LLC is relatively new and untested, having first appeared in Delaware in 1995. Here in Texas, the Series LLC was just passed by the Legislature in the 2009 session (Senate Bill 1442).

Texas Series LLC Law