James Fox Raulin Amy Robin Burkill March 16 2023 Jersey LLCs: formation, tax treatment, LLC agreements and membership Ogier | Private Client & Offshore Services - Jersey James Fox, Raulin Amy, Robin Burkill Private Client & Offshore Services IntroductionEstablishing LLCsFormation certificateTax treatmentLLC agreementMembershipThis series provides a summary of the main legal requirements and general principles applicable to the formation, registration, operation and winding-up of a Jersey limited liability company (LLC). Part one of this series offers an overview of LLCs in Jersey, how to establish LLCs, as well as details regarding the formation certificate, tax treatment, LLC agreements and LLC membership.IntroductionThe Limited Liability Companies (Jersey) Law 2018 (LLC Law), which came into force on 1 September 2022, creates a new hybrid entity, a Jersey LLC, similar to its Delaware and Cayman counterparts. A Jersey LLC is a corporate entity with limited liability of its members but one which:has greater flexibility than a company around its management and organisation; andallocates profits and losses in a manner similar to a partnership.By default, a Jersey LLC will have separate legal personality but not be a "body corporate". However, unique to Jersey, a Jersey LLC may elect to be a "body corporate", which means it can choose to be treated as a partnership or a company for tax purposes. This election is only possible upon establishment and cannot be changed once made. This approach is designed to provide maximum flexibility in structuring options for an LLC.As such, an LLC may be an appropriate vehicle for a range of uses in:investment funds;joint venture companies;private equity transactions;securitisations; andother corporate transactions and international structures.Establishing LLCsThe formation of a Jersey LLC is straightforward and similar to the process of forming a Jersey limited company or limited partnership. Only one member is required in order to register an LLC and there is no requirement for a manager.Similar to the process for Jersey companies, an application is made using the online myRegistry portal with the Jersey Registrar of Companies (the registrar) with the following information to be provided:the name of the LLC, which may be a proposed name or a reserved name (this name must end with the words "Limited Liability Company" or the abbreviation "L.L.C." or "LLC" and must not, in the opinion of the registrar, be misleading or otherwise undesirable);the nature of the LLC's business (chosen from a predetermined list);the details of the LLC's proposed registered office address that must be in Jersey;a signed registration statement (the declaration) containing the following information:the name of the LLC;the registered office of the LLC in Jersey;the name(s) and address(es) of each person who is to be a member and/or manager of the limited liability company upon registration; andthe name(s) and the address(es) of the proposed secretary and deputy secretary (if any);details of the LLC's associated parties, being its beneficial owners and controllers as well as "significant persons", who are the manager(s) of the LLC or, if there is no manager, the members involved in the management of the LLC;details of the activities of the LLC, particularly if the LLC is to engage in a "sensitive activity" under Jersey's Sound Business Practice Policy; andpayment of an application fee, depending on the proposed speed of registrationLike Jersey companies, it is expected that a Jersey regulated corporate services provider would be responsible for preparing and submitting most LLC applications.Formation certificateOn completion of the LLC application, the registrar will register the LLC and issue a certificate of formation. This formation certificate is conclusive evidence of compliance with all the requirements of the LLC Law in respect of formation and registration. An LLC is deemed to be registered on the date that is on the formation certificate.The registrar will issue the formation certificate between two hours and five days after filing the LLC application, depending on the level of the application fee. An out-of-hours registration is also available by agreement with the registrar.Upon formation, the LLC should receive consent to create limited liability company interests under the Control of Borrowing (Jersey) Order 1958. This is the same as a "COBO consent" granted to Jersey companies in respect of shares.Tax treatmentBy default, an LLC will be treated in the same way as a partnership in Jersey and so will be tax transparent.However, an LLC that elects to be a body corporate will be treated as a company for tax purposes. This is intended to cater for a US "check the box" tax election where the LLC can be treated as either a company or partnership. It is expected that the LLC will be treated in the same way as a Jersey partnership for UK tax purposes.LLC agreementThe LLC must have a written LLC agreement of the member or members of the LLC as to the business or affairs of the LLC. Although the LLC agreement may be entered into at any time before, after or at the time of the filing of the LLC agreement, if it is filed before the filing of such statement, it is deemed effective on the date of the formation certificate.The registrar is not required to fine the LLC agreement, but a copy of it together with all amendments must be kept at the LLC's registered office.Pursuant to the LLC Law, the LLC agreement may, among other things:provide for classes or groups of members having such relative rights, powers and duties as the LLC agreement may provide, and may make provision for the future creation in the manner provided in the LLC agreement of additional classes or groups of members having such relative rights, powers and duties as may from time to time be established, including rights, powers and duties senior to existing classes and groups of members;make provisions relating to:notice of the time;place or purpose of any meeting at which any matter is to be voted on by any members;waiver of any such notice;action by consent without a meeting;the establishment of a record date;quorum requirements;voting in person or by proxy; orany other matter with respect to the exercise of any such right to vote;permit the taking of an action, including the amendment of the LLC agreement, without the vote or approval of any member or class of LLC interest or group of members, including an action to create under the provisions of the LLC agreement a class of LLC interest or group of members that was not previously outstanding or existing;provide that any member or class of LLC interest or group of members shall have no voting rights;provide that all or certain identified members or a specified class of LLC interest or group of members have the right to vote separately or with all or any class of LLC interest or group of members or managers on any matter; andpermit voting by members to be on a per capita, number, financial interest, class, group or any other basisUnless otherwise provided in the LLC agreement, written resolutions may be passed by members having at least or more than the minimum number of votes that would be necessary to authorise or take such action at a meeting at which all members entitled to vote thereon were present and voted. Therefore, written members' resolutions do not need to be passed unanimously unless the LLC agreement requires unanimous consent for written resolutions.MembershipThe initial member of the LLC is deemed admitted on the date of registration. The LLC agreement should set out the conditions for admission as a subsequent member which will occur on satisfaction of such conditions and when the member is entered into the register of members of the LLC. In the absence of any such provision in the LLC agreement, the consent of all existing members is required for admission of a subsequent member. Transfers of a member's interest in an LLC must be in compliance with the LLC Law and the provisions, if any, set out in the LLC agreement. Provided all requirements for admission have been complied with or waived, a person is deemed to be a member and is subject to the terms of the LLC agreement without the need of further action on their part.Unless otherwise specified in the LLC agreement, a member may be admitted and may receive an interest without making or being liable to make a contribution to the LLC.A member may resign from the LLC and cease to be a member at the time or upon the happening of such an event and in accordance with the LLC agreement or as otherwise specified in the LLC Act or with the consent of all the members. Subject to the LLC agreement, or unless all members otherwise consent, a person shall be treated as having resigned as a member of LLC immediately upon certain bankruptcy or insolvency states. The personal representative of a deceased or incapacitated member may exercise all such member's rights in the LLC.For further information on this topic please contact James Fox, Raulin Amy or Robin Burkill at Ogier by telephone (+44 1534 514000) or email ([email protected], [email protected] or [email protected]). The Ogier website can be accessed at www.ogier.com.