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I have recently gone to work for a small business in which many entity changes were effected by a previous outside tax planner as of the end of 2011 and throughout 2012. During year 2012, four additional LLCs were created to conduct different lines of business for the same married owners.
The original company, an S-corp, was split into two separate LLC entities, one for each of the two locations which sell identical products and services. The two locations and the other new entities were separated in order to protect the owners’ assets from potential lawsuits should there be any.
The operating agreement for each of the six LLCs indicates that the ownership is 50/50 husband and wife.
The trial court granted the defendants summary judgment, holding that FH Partners didn’t own the loan and so it couldn’t enforce it.
Although it may have been intended to put in place a new arrangement by a particular date – often a year end – that date may now have passed. Obviously the ideal position is to put in place the legal documents in advance. Well, it depends on what was transferred, and whether it can be said that the relevant transaction has already happened.
Documenting a transaction which has already happened One possible scenario is that the relevant transaction has already happened, but just hasn’t been documented yet.
This is reflected in the Linklaters article Execution of Documents: Five Common Questions Answered, which offers the following advice for in-house lawyers: “(i) contracts may only be backdated, absent fraud, in circumstances where an original form has been lost or where terms have been fully agreed but signatures have been left to a later date and (ii) deeds may never be backdated.” Unfortunately, the article offers scant authority, and a search on Google reveals little else on the subject from the commonwealth world.
In the US, however, there seems to be have been much more consideration of the issue (at least according to my Google search results).
For those with an hour to kill thinking about the issues, Jeffrey Kwall and Stuart Duhl wrote an excellent article on backdating that was published in Business Lawyer in 2008.