Federal tax classification of entities with zero-equity members.

• Author: Packard, Pamela

Zero-equity members are not uncommon, especially in a foreign context. In fact, countless German businesses operate through an entity called a GmbH & Co KG. A U.S. acquirer of a German group is likely to end up owning several GmbH & Co KGs and needs to know how to classify them for U.S. tax purposes.

In Letter Ruling 200201024, one "member" of a two-member domestic limited liability company (LLC) did not meet the minimum membership requirements for the "check-the-box" rules under Regs. Sec. 301.7701-3. The member had no interest in the LLC's capital, did not share in the company's profits or losses and had no management rights or responsibilities. Its sole purpose was to prevent the other member from placing the LLC into bankruptcy on its own volition. As a result, for classification purposes, the LLC was a disregarded entity or "tax nothing" under the default rule for domestic entities under Regs. Sec. 301.7701-3(b)(1). According to this regulation, a domestic eligible entity (i.e., an entity other than a per se corporation) that does not file an election for treatment as a corporation would be a partnership if it has two or more members, or a disregarded entity if it has a single owner.

A GmbH & Co KG is a limited partnership (Kommanditgesellschaft) for German tax and legal purposes. Typically, it has one limited partner, a corporation that owns 100% of the partnership capital, and one general partner (also a corporation (or "GmbH")) with no equity interest and no share in the company's profits and losses. In most instances, this general partner is the limited partner's wholly owned subsidiary. Unlike the zero-equity LLC member in Letter Ruling 200201024, the general partner of a GmbH & Co KG has unlimited liability for the partnership's debts and is responsible for managing the entity. However, in light of Letter Ruling 200201024 and prior rulings, it is far from certain whether the zero-equity general partner qualifies as a member under the check-the-box regulations.

The question of membership is relevant regardless of whether the GmbH & Co KG makes a check-the-box election. It is true that it may always elect corporation treatment, but the number of members determines the availability of an election for treatment as either a partnership or as a disregarded entity (Regs. Sec. 301.7701-2(a) and -3(b)(1)). The number of members is even more important under the default rule for foreign entities (Regs. Sec. 301.7701-3 (b) (2) (i)), under...