I setup an LLC back in 2006 simply to provide liability limitation but have never filed

Jul 10, 2013 6 Replies

Hello, This is my situation - I have a California C Corp in good standing. I am the sole owner. A few years ago (2006) I setup an LLC under that C-Corp just for doing the approximately $6k worth of aircraft-related work I do each year - I do propeller balancing as a little side-line. So I wanted the protection of an LLC, alomg with a good liability insurance policy. The LLC has no assets, nor any employees - it was only created for protection in the event of an accident or incident. All the income (about $6k annually gross) from that LLC has always been transferred within a few days into my C Corp's bank account and all of that income has always been declared on my C Corp's federal and state income tax returns. The C Corp also pays its california franchise fee every year. So I have never filed any tax returns of any sort for the LLC, nor paid any franchise fees - I didn't know I needed to and have never received any requests from the FTB in the past. Well, I just received a request for a form 568 today for the year 2008 for the LLC. I am in a bit of a panic, because it came out of left field. As I said, the LLC makes no money - it only just covers the expenses of the little bit of flying I do to do the balancing at airports. I do about 30 of those little jobs at $200 each every year. I'm trying to imagine what I will do, having no money in the LLC to pay the franchise fees if they want to charge $800 per year. The LLC never has more than $1200 in the bank and even then it's only for a few days until its time to transfer it into the C Corp. The C Corp pays the rent, the balancing equipt and all the other expenses incurred for doing the balancing work. The resultant profit is neglible = perhaps $500 per year, but is always declared on the C Corp's returns. Can anyone advise me the best way to approach the FTB on this please? I will have to confront them. I can easily file a 568 for every one of the past years - no problem - there's zero tax owing. BUT... what about those franchise fees?



If I have to shut down the LLC then I will but I need to shut off the FTB's attempts to kick my ass with these franchise fees. There's no money nor assets as I said but I'm not going to carry on doing this work if its only so that I can pay the FTB.



Many thanks for reading this rather long description and for taking the time to reply and advise me if you can. (Has anyone here been in a somewhat similar situation perhaps?) Thanks again, Jeremy M


So far so good

Ok, nothing remarkable.

There is a minimum franchise tax due for the LLC for each year it does business, whether it makes money or not. If you have not paid that, you will likely have problems.

Doesn't matter whether it makes money or loses money - the minimum franchise tax is due and owing for each year it transacts business. So if they have already come after 2008, you can be sure they will eventually get around to all the other years, too.

Since the LLC transferred its money to the corporation, the corporation will be liable for the LLC's taxes, up to the amount the corporation received.

You (rather your corporation) owes them. Or at the very least it owes the $500 per year profit that came from them. But my guess is that the Franchise Tax Board will go after the entire amount, and probably get it.

For LLC's that have transacted no business, there is no personal liability for the minimum tax on the LLC owners. But if the LLC actually received money and paid that money to creditors other than to the FTB, and particularly if there was money left over, the FTB has a good claim.

Then you need to shut down the LLC. But you can't do that without paying the past unpaid minimum taxes.

If I were you I'd get to an accountant right away and see what can be done - there are too many facts left out of your story, and someone you see will be able to get to the bottom of it. But don't think for a moment that you won't end up paying most if not all of what they are claiming.

Sorry to be the bearer of bad news, but sometimes doing your own taxes, particularly in a business setting dealing with corporations and LLC's, can be a big mistake.

Don't C corporations also provide liability protection? Ie, if something goes wrong (you balance the propeller wrong and it crashes), don't the LLC and C corporation give the same protection. I heard of something called a charging order, but do you need that?

The rules are clear. You need to pay $800 per year for both entities. You shoud have had just one entity. There is also interest and penalties.

I have a similar situation. I started a sole owner LLC in 2008, never did business under this LLC but did under DBA as same name, one bank account collecting under 100K a year as DBA. Never filed taxes under LLC or with Franchise tax board, had no employees,no tangible good- services freelance only, etc. Am I still liable for the 800 dollars, or how could I get out of paying this?

Thank you

Did you fund the LLC? Did it ever have any money? What happened to that money?

The normal rule is that the LLC continues to owe the money, and an additional minimum tax for each year it is in existence, plus interest and penalties for unpaid past taxes.

It owes the money, but you, as an individual, normally do not.

There are situations in which a manager of an LLC could be personally liable. This generally occurs when the LLC is supposed to collect taxes (e.g. sales taxes, employee withholding taxes) and doesn't pay the taxes they were supposed to collect. Whoever was responsible for that can be personally responsible for those taxes.

And if an LLC member, as a member, receives funds from the LLC that could have gone to LLC creditors, the member may be responsible for paying that back so it can be paid to creditors.

In your case, assuming the LLC never had employees, never transacted any business and was never funded, you are likely not personally responsible for paying the LLC's tax bill.

Here is my situation - any advice? We also received one of those notices to file a 568 We never operated the business as an LLC. Just a sole proprietorship. We had been in consultation with a company called Tax Sentry at 70 Red Pine Dr., Alpine, Utah 84004-1557. They advised us to form an LLC. We did initially set the wheels in motion to form an LLC, but we changed our minds. We notified Tax Sentry of our decision NOT to go ahead with forming an LLC, but they did not cancel it nor inform us that there was a need to cancel it. We immediately (today) are filing to cancel it. We got this notice yesterday (it had gone to the address of Tax Sentry and they mailed it to us). We did file 2010 - 2013 income taxes as a sole proprietorship. I spoke on the phone with the Franchise Tax Board agent who advised me to call the Secretary of State, who informed us how to cancel the LLC. We never received any acknowledgement that we actually had formed an LLC. We never received any letters from the FTB until yesterday, and it had been forwarded to us. The address on the form the Franchise Tax Board sent was their address and not ours. Now the agent says we are liable for the 800 for each year! Any help would be appreciated.

You don't say which state you are in. I can tell you the situation in California, and my guess is that it should be the same in most if not all places. But I can't guarantee that.

In CA an LLC is a separate legal entity, and you have no personal responsibility for it or its debts. This is particularly true if you did not use it at all, and did not file a tax return for it showing any income.

If the LLC never had any assets and never transacted any business, just ignore anything you may get concerning it from the Franchise Tax Board. You have no personal liability for its taxes.

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