The Delaware Series LLC: Sophisticated and Flexible Business Planning
Michigan Journal of Private Equity and Venture Capital Law, Vol. 2, p. 97 (2012)
39 Pages Posted: 7 Jun 2012 Last revised: 19 Jan 2013
Date Written: June 7, 2012
Delaware has long attempted to provide business structures that reflect the demands of the business community in an efficient, productive and predictable manner. One prime example of this demand/response is the “Delaware series” – an option for isolating entity assets from others within designated “series” – an election that is available in Delaware limited partnerships, limited liability companies (“LLCs”), and statutory trusts. The series structure combines the internal flexibility necessary for different types of businesses and investors along with the statutory and judicial support of “maximum freedom of contract” and “enforceability of agreements” that Delaware promises to all of its unincorporated business organizations. Several states have now emulated the Delaware series concept. Other states make reference to the series concept; however, these states do not provide all of the benefits offered by the Delaware series, namely, the internal protections offered by the Delaware series. Despite the series’ increasing popularity, there is still considerable confusion as to how a series functions.
One piece of the tax ambiguity is now addressed in the September 2010 proposed Internal Revenue Code Regulations on series. That the proposed Regulations are now available does not suggest transparency in the area of taxability or general use of series entities. Instead, this article is intended to provide an overview of some of the more significant provisions of the Delaware LLC series law and its antecedent – the Delaware Statutory Trust Act. The authors conclude that the Delaware series supplies a beneficial, efficient use of a combined contractual Delaware entity form by sophisticated business attorneys when pooled with sensible, informed planning. The series is not, however, for general practitioners who have the occasional client wishing for the “latest” benefit Delaware has to offer its investors. Such practitioners may well be “offering” their licenses if not extremely careful.
Keywords: Delaware, business entities, series, limited liability companes, LLCs, limited partnerships, statutory trusts, business organizations, taxation
JEL Classification: K22
Suggested Citation: Suggested Citation