Tuesday, October 8, 2013

Agenda - 2013 LLC Institute (Oct 17-18)

LLCs, Partnerships and Unincorporated Entities Committee

2013 LLC Institute

October 17-18, 2013



Thursday, October 17, 2013



8:30 a.m.-10:00 a.m.    Partnership Creation – Avoiding Audit: Considering, Creating, and Caring for Family Limited Partnerships

Speaker:  Stephanie Loomis-Price, Winstead Attorneys, Houston, Texas

This session will provide practical tips with some discussion on recent developments in audits and case law related to creation and maintenance of family limited partnerships.  Topics addressed will include:

     Determining when it is not feasible to create a partnership

     Optimizing partnership defense to avoid IRS attacks

     Advising clients on proper entity operation


10:30 a.m. – 12:00 p.m.  Taxation of Transfers of LLC and Partnership Interests

Speakers:  Andy Immerman, Alston & Bird LLP (Atlanta, Georgia); Joseph Mandarino, Stanley, Esrey & Buckley (Atlanta, Georgia)

The speakers will review tax issues that arise when structuring sales and other dispositions of LLC interests. Recent law changes will be addressed, as well as traps for the unwary, planning alternatives and compliance matters.


12:15 p.m.-1:15 p.m. LUNCHEON 

Keynote Speaker:  Chief Justice Myron T. Steele, Delaware Supreme Court

Topic:  The Growing Importance of Alternative Entities as Compared to Corporate Structures


1:30 p.m.-3:30 p.m.     Effective Drafting of Capital Account Provisions

Speakers:  John Rooney, KPMG (Washington, D.C.); Sebastian Grasso, KPMG (Washington, D.C.)

Target Capital Accounts: Can You Hit the Mark?


Target capital account provisions have become the new standard for allocating income in partnership and LLC agreements, but no industry-standard language has emerged and drafting errors remain common.  This practice-oriented discussion will focus on the more common drafting errors and ways to avoid them.  The discussion will also highlight some of the more common difficulties with implementing target capital accounts.


3:30 p.m.-5:30 p.m.     LLC Interests and Securities Law

Speakers:  Jennifer Johnson, Lewis & Clark Law School (Portland, Oregon); Anita Krug, University of Washington School of Law (Seattle, Washington); Tanya Durkee Urbach, Lane Powell PC (Portland, Oregon)

This panel will discuss when LLC membership interests may be considered “securities” under federal and state securities laws. The panel will evaluate the securities law implications of the default provisions of various LLC statutes and provide drafting tips for attorneys who wish to avoid the securities designation. The panel will also explore the consequences for both attorneys and their clients when LLC interests are classified as securities.


6:30 p.m.-7:30 p.m.   Cocktail Hour – Cash Bar


7:30 p.m.-10:00 p.m. Lubaroff Award Dinner

                                    Elizabeth S. Miller, 2013 Award Recipient


Master of Ceremonies: Lauris G.L. Rall, SNR Denton LLP (New York, New York)



Friday, October 18, 2013


8:30 a.m.-10:00 a.m.     Recent Case Update         


Speakers:  Beth Miller, Baylor Law School (Waco, Texas); Lou Hering, Morris, Nichols, Arsht & Tunnell LLP (Wilmington, Delaware); Melissa Stubenberg, Richards, Layton & Finger (Wilmington, Delaware)


This panel will discuss recent LLC and partnership cases on various topics of significance, including cases dealing with fiduciary duties and veil piercing and cases illustrating pitfalls in drafting operating agreements.

10:30 a.m.-12:00 p.m.     Partnership and LLC Reorganizations


Speakers:  Bradley Borden, Brooklyn Law School (Brooklyn, New York); Steve Schneider, Goulston & Storrs (Washington, D.C.); Brian O’Connor, Venable LLP (Baltimore, Maryland)


How to structure and draft partnership and LLC mergers and divisions continues to perplex.  For example, how do you structure cash payments that are paid to some but no others?  How do you draft provisions to ensure that built-in gains are allocated to the right people and not accelerated in the transaction?  Finally, what do you do when a partner is relying on partnership debt to protect a “negative tax capital” account?  Each of the three experienced panelists brings many years of practical law firm, accounting firm, IRS, and teaching experience to bear in a panel designed to both educate and entertain.  


12:15 p.m.-1:15 p.m. LUNCHEON: Working Committee Meeting


     Report from S. Frost and A. Donn on status of NCCUSL Series drafting committee


   Discussion of Committee Business including 2014 LLC Institute and its relationship to ABA             Annual Meeting of Sections of Business Law, Tax and RPPT



1:30 p.m. – 3:00 p.m.      Rationalizing Entity Law:  Corporate Law and Alternative Entities


Speakers:  Joan Heminway, The University of Tennessee (Knoxville, Tennessee); Mark Loewenstein, University of Colorado School of Law (Boulder, Colorado)


Forms of business entity have proliferated in recent years.  The theoretical and policy underpinnings of the distinct statutory frameworks for business entities are not wholly transparent or consistent.  As a result, practitioners, academics, and others have sought (and continue to seek) to rationalize the various forms of entity.  This session seeks to identify salient differences in treatment as among the core forms of business entity by primary reference to limited liability company and corporate law and consider whether, as we pursue entity rationalization, these differences can be justified.  Where appropriate, reference will be made to limited partnership and limited liability partnership law in addition to limited liability company and corporate law.



3:30 p.m.– 5:00 p.m.    Key Issues for Creditors of Distressed Unincorporated Entities

Speakers:  Michelle Harner, University of Maryland Francis King Carey School of Law (Baltimore, Maryland); Peter Oh, University of Pittsburgh College of Law (Pittsburgh, Pennsylvania); Mark Collins, Richards, Layton & Finger (Wilmington, Delaware
Doing business by contract in an unincorporated entity form can create certainty for owners but it also can generate ambiguity and economic risk for parties doing business with the entity. This panel focuses on challenges to creditors of an LLC when the LLC attempts to shield its assets from creditor claims either through asset partitioning, securitization, or chapter 11 bankruptcy.  The panel will discuss the basic underpinnings of these alternatives and then examine defensive tactics that creditors can invoke to better protect their rights against the LLC and its members. These tactics include using contractual protections and existing legal doctrine such as equitable subordination, veil piercing, fraudulent conveyance, and charging orders.


5:00 p.m. – 5:15 p.m.   Closing Remarks and Adjourn


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