1. An LLC can provide certain tax and liability advantages. In certain circumstances, holding title to real estate in an LLC can provide a valuable tax advantage. However, if the main intent of forming an LLC to hold real estate is for its tax advantages, you should be sure to speak with a qualified tax advisor. Be certain that you obtain a specific tax identification number from the IRS for the LLC. Applying for an Employer Identification Number or tax id is a rather simple process and can be done online. You will need to provide a tax id number to the closing attorney.
2. There is a cost to create and maintain an LLC. The cost to file for and create an LLC in Massachusetts is around $500.00. This does not include the cost of legal counsel. An annual report will need to be filed with the Mass. Secretary of State each year at a cost of $500.00 per LLC. In most circumstances, if the intent of having an LLC is to avoid legal liability associated with the ownership of real estate, you should probably have two LLCs. One LLC to hold title and one to manage the property. Be certain that the application to create an LLC and operating agreement are prepared properly. Mistakes made in filing for an LLC can be costly and time consuming to correct. Don’t file for an LLC in any other state or jurisdiction unless you have a really good reason for doing so. Cost should not be the sole reason. Consult qualified legal counsel to assist you.
3. An LLC is not right for every situation. Although an LLC can hold title to real estate, it does not mean that it is the best way to do so. You should carefully consider the pros and cons of using a realty or nominee trust, a standard corporation, or individual ownership for each piece of real estate. We often find that sellers spend needless time and money to hold title in an LLC when it really was not necessary or proper for their situation. It may be considered “fashionable” to have an LLC, but it is not always prudent.
4. An LLC is not like a regular corporation. One of the primary differences between an LLC and standard corporation, or S Corp, is the way gains and losses are accounted for between members and shareholders. With an LLC, gains and losses can be allocated disproportionately between members, not so with an S Corp where it is shared between pro-rata shares of ownership. With LLCs, members are able to pass losses to their personal income reporting. This can’t be done with a regular corporation.
5. An LLC must be in good standing with the state in order to sell its real estate. If your LLC holds title to Massachusetts real estate you will need to prove that the LLC is in good standing with the State before you can actually close on the sale. The most acceptable way to show good standing is to obtain a certificate from the Secretary of State’s office. The Secretary will not issue a certificate if the LLC is not current with its annual report filings. The cost of a Certificate of Good Standing is about $25.00. Obtain it well in advance of an anticipated sale, the closing attorney will likely require it prior to closing.