Limited liability is a significant advantage provided by corporations and limited liability companies (LLCs). However, the personal asset protection that corporations and LLCs provide for their owners is not absolute. To maintain the liability shield, owners must comply with certain corporate formalities required by state law or recommended as a best practice. In addition, observing these important corporate formalities provides the accurate documentation and records needed for a business to operate successfully.
Under some circumstances, the owners of a corporation or the members of an LLC can lose their limited liability protection and be held personally responsible for the obligations or debts of their business. This is known as “piercing the corporate veil.”
Without the liability shield that establishes corporations and LLCs as legal entities separate and distinct from their owners, many individuals would not engage in business because they fear being held personally responsible for a business’s actions, debts, and obligations.
LLCs are generally subject to fewer legal formalities than corporations. However, for both types of entities, following basic operating procedures such as holding meetings, keeping records, and establishing separate bank accounts helps maintain the liability shield. These formalities also help establish that a business is a separate legal entity from its owners, which precludes creditors from pursuing the owners to satisfy the business’s debts or obligations.
While maintaining a corporation’s or LLC’s separate entity status is arguably the most critical reason to observe corporate formalities, it is not the only reason. Corporate formalities also help create and maintain the body of information, data, knowledge, and experience that a company accumulates and needs to maintain for its future operations.
These records are a valuable business asset with numerous applications, including the following:
Corporations and LLCs are created by state law and must adhere to the rules established at the state level. The formalities required for corporations and LLCs are different, however.
It is the responsibility of a corporation to observe the formalities required by the state(s) in which they operate. The following are some formalities that corporations typically must comply with:
Many corporate formalities are not required for LLCs but are considered best practices and are highly recommended.
For example, most states’ LLC statutes do not require LLCs to hold formal meetings or record minutes when meetings are held. LLCs are also not obligated to have a board of directors or, except for a handful of states, to create an operating agreement—the equivalent of corporate bylaws for an LLC.
Suppose an LLC does not have an operating agreement. In that case, it is subject to the default rules outlined in the Texas Business Organizations Code, which may not reflect the LLC members’ preferences about how to run the business. Failure to observe the following LLC best practices could threaten the liability shield and result in inadequate business records:
A business attorney who understands the law and the risks that businesses face, internally and externally, can provide businesses with a professional, objective, top-level view of corporate formalities. We can help business owners observe the formalities necessary to protect themselves against personal liability for the business’s obligations and debts and maintain essential records for its operations—whether legally required or recommended best practices. Book a Free Discovery Call today.
(By Appointment Only)
14425 Falcon Head Blvd
Bldg E-100
Austin, TX 78738