Private Money411 Magazine - The Source for Real Estate Finance PRIVATE MONEY411 - BAMF | Page 9
Segregating
Assets and Liabilities
By Jay Butler
I
s a ‘Series’ Limited
Liability Company akin to
putting all your eggs in
one basket or can a Series
LLC truly provide asset
protection through the segregation
of subsidiary assets and liabilities?
Originally designed to assist
investment companies in the
mutual fund industry avoid a
multitude of SEC filings,
Delaware introduced special
interest legislation in 1996 to
enable one company to act as an
‘umbrella’ for the activities of all
their individual client funds. Such
a strategy has also been
successfully implemented
internationally with ‘Segregated
Portfolio Companies’ (British
Virgin Islands and Belize) and
'Protected Cell Companies'
(Republic of Seychelles) for
insurance companies and other
09
industries servicing large
quantities of related clientele.
The method of shielding large
institutions from mass claims
arising from catastrophic events
was then brought to average
individuals engaged in common
business activities with varying
degrees of risk such as real estate
investing, construction and fund
raising. However, many questions
have since arisen on ‘how to use’ a
Series LLC with regards to
banking, documentation and
taxation.
A Series LLC consists of a
‘master’ company and a series of
‘subsidiary’ companies, which
may conduct unrelated business
activities with differing ownership
interests. Of the thirteen states
which currently have legislation
enacted for a Series LLC, only
Illinois requires their subsidiaries
to be registered with the Secretary
of State (which is advantageous,
albeit more expensive). All other
jurisdictions leave the
responsibility of maintaining
proper books and records with the
company ownership.
Nevada added Series LLC
legislation in 2005 and, along with
a growing number of states, allows
a Series LLC to enter into
contracts, hold title to assets, grant
security interests and to sue or be
sued just like other types of
entities. Although no court cases
have reached any State Supreme
Court to establish a precedence for
the efficacy of a Series LLC, there
is more than a decade of use to
their credit. Nevada is currently
working to pass legislation
preventing any (future) outof
state court rulings to be used into a
Nevada court of law.