Many physicians use Limited Liability Companies to hold investment assets such as equipment and real estate or to operate a business outside of their practice. LLCs are generally easier to form than corporations, have fewer formal operating requirements and offer a greater variety of tax planning options.
However, that the purported protection of the LLC law is often and increasingly disregarded by the courts under a variety of legal theories, leaving personal assets exposed and unprotected from business risks — exactly the result that the owner was attempting to avoid.
Why are courts reaching these surprising conclusions, and what steps can individuals take to protect themselves from unexpected and possibly significant financial losses?
Limiting personal liability
Most importantly for some, the basic tenet of LLC law is that members and managers of the LLC are not personally liable for the debts of the company. This is known in legal terms as limited liability and it prevents a creditor of an LLC (or a corporation) from pursuing the personal assets of an owner.
This limitation on liability is a crucial factor in operating or investing in a business venture. An investor wants certainty that personal assets, not invested in the business, are free from any potential claims which might arise. The concept of limited liability permits an individual to calculate the extent of the financial risk that is being assumed in relation to potential profits from the business.
Limitations on personal liability are a foundation of any market economy because no individual or company would knowingly make an investment if the total cost of the investment, including potential liabilities, could not be reasonably calculated in advance.
Individuals are justifiably reluctant to make investments that place all of their personal assets at risk and the typical solution is to use an LLC or another corporation that is intended to limit this exposure.
Piercing the corporate veil
The ability of a lawsuit plaintiff to reach the personal assets of the business owner is known as “piercing the corporate veil.” Prior to the widespread adoption of LLC legislation in all states in the early 1990s, corporations were the most widely used form of business entity. But corporations had some glaring defects in accomplishing this essential mission of limiting personal liability.
Over the years, courts tended to weaken the corporate liability shield under a variety of legal theories. Thousands of cases on these issues have been decided and broad rights have developed for those seeking to pierce the corporate veil and hold the owners personally liable. Unfortunately, some of these tactics used to pierce the corporate veil are now being used to pierce the LLC veil.
One legal ground for piercing is failure to follow corporate formalities, such as issuing shares, holding annual meetings, preparing minutes, and creating and maintaining governing bylaws. In cases where these formalities are not properly followed, courts have held that the legal liability protection of the shareholders was effectively waived and the personal assets of the owners could be reached by the plaintiff.
This result is most likely to occur in smaller, family-owned businesses, which tend to be less diligent in maintaining the corporate records than larger companies with the resources and staff necessary to meet filing and compliance requirements.
A second rational for piercing the corporation veil is based on what is known as alter ego liability. What this means is that when an individual and a company are so closely linked that they should not be viewed as separate entities for legal purposes, the shield against personal liability will not be applied.
Over the years, courts have enumerated dozens of factors that should be considered in making this determination. Some of those examples mentioned frequently in the cases include: (1) commingling of funds and other assets; (2) the treatment by an individual of the assets of the corporation as his own; (3) the failure to maintain minutes or adequate corporate records; (4) the use of the same office or business location, employment of the same employees and/or attorney; (5) the failure to adequately capitalize a corporation; and (6) the use of a corporation for a single venture.
Since there are so many factors which can be considered and the proper weight to be given to any particular factor is left entirely to the courts discretion, it is too often the case that if a court wishes to find alter ego liability, it is easy enough to do so. A reading of the cases demonstrates that similar fact patterns produce dramatically different results based on the particular conclusion which the court is attempting to shape. The outcome depends less on the conduct of the parties than it does on the courts view of what a just or fair result should be.
Piercing the LLC veil
What we have described above about piercing the corporate veil applies as well to LLCs. In the states, LLC law and court cases generally permit piercing of the LLC veil to the same extent as corporate law. Although LLC formalities are sometimes not as strict as those of corporations, when the alter ego doctrine is asserted, a failure to hold annual meetings and maintain adequate company records may influence the court’s decision on personal liability protection.
One of the unfortunate byproducts of the uncertainty surrounding the application of the law is an inevitable increase in the number of cases filed against LLCs and their owners. Lawyers and lawsuit plaintiffs take advantage of the unpredictable outcome of any case by routinely naming the owner as a defendant in litigation against the LLC. This move immediately places the owner’s personal assets in jeopardy since he or she is threatened with potentially large legal costs as well as a real loss of personal assets if the plaintiff is successful.
Depending on the size of the claim and the amount of the defendant’s available wealth, plaintiffs and their lawyers know that there is usually strong motivation for the owner to settle to avoid litigation costs as well as the possibility of an unfavorable outcome in the case.
When a legal outcome is uncertain, as it is in most veil-piercing cases, the plaintiffs’ lawyers working on a contingent fee have significant bargaining leverage over an LLC owner who must bear the costs of defending the litigation and the possibility of large personal losses.
How to protect against personal liability
The first step to avoiding personal liability in these cases is to comply with the legal requirements concerning company formalities and operations as described in the cases and legislation. Following these legal requirements won’t guarantee success, but depending on the facts of your case, may help tilt the scales toward avoiding personal liability.
This certainly means that the initial organizational filings, IRS compliance and operating documents and procedures for the company are correct and properly maintained. The company should be adequately capitalized for its purpose and commingling of accounts, and undocumented contributions and distributions should be avoided.
As an additional safety measure, many physicians use asset protection planning to insulate and shield personal assets from the risks of their medical practice or from the other sources of liability which may arise from business or investment activities. This legal planning generally involves the use of strategies such as retirement plans, trusts and holding companies to protect assets such as homes, savings and investments. A full description of the asset protection techniques and planning used by physicians can be found at “Legal Guide to Asset Protection Planning.”
Taking the proper steps to minimize the risks of your practice and business makes sense for those who have accumulated savings and investments. If these assets are intended to be held separately and apart from the liabilities of your business activities then some planning to accomplish this result should be considered.
As a note of caution, make sure to discuss the details of your particular matters with your advisers to make sure that the tax and ramifications of your planning strategies are properly evaluated and are appropriate for your specific situation.
Robert J. Mintz, JD, is an attorney and the author of the book “Asset Protection for Physicians and High-Risk Business Owners.” To receive a complimentary copy of the book, visit www.rjmintz.com.