Can you really hide LLC ownership? You betcha!

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I was talking through a complex wealth situation with a member of the Prospect Research Institute. While the prospect was clearly wealthy, there were some transactions and entities mentioned in a public company filing that were curious. I said, “Why not look up the LLC to find the names of the members?” Wouldn’t you know… it was an LLC incorporated in Delaware.

“Sure, you have to pay for it, but the members of an LLC are public information,” I told her with certainty. So, she pursued the matter. The website told her that this information was available on the annual reports filed each year, and to obtain these documents you must call the Delaware Division of Corporations.

She called. The man who answered looked up the record and told her that the names and addresses were not on file. They would be known to the company itself (of course) and to the company that handled the registration.

What? Could this anonymity be legal?

Turns out that it is, and has been, legal to incorporate an LLC and have the owners remain 100% anonymous. “How is it accomplished?” you might ask.

I included a source below with states who do and don’t require public disclosure of LLC members, and I didn’t look into every state, but in the state of Delaware, when you form an LLC (limited liability company) there are three places where the members or managers might be listed and available to the public. However, if you authorize someone to create the LLC on your behalf, you can circumvent any public listing of the members or manager.

  1. Certificate of Formation: The person creating and filing the Certificate of Formation is the one listed in the public record. This person does not have to be the member or manager of the LLC, and Delaware does not require recording the members or managers anywhere.
  2. Registered Agent: Every incorporated entity must have a registered agent. The registered agent is the official representative of the company who can receive service of lawsuits or any other official business. It does not have to be a member or manager. The registered agent must have a contact at the LLC, but even that person does not have to be a member or manager.
  3. Franchise Tax: The owner of an LLC may elect an agent to pay the franchise tax so that there is no record of the member or manager name.

While a Delaware LLC can avoid any public listing of members or managers, this does not extend to creating a bank account. In order to prove ownership to open a bank account, the member can present an Operating Agreement for the LLC. The Operating Agreement is a legal, governing document and includes the names of the members and managers.

And while the members and managers of an LLC can remain anonymous to the public, officers and directors of corporations must be revealed when making franchise tax payments.

“U.S. Congress bans anonymous shell companies”

Tantalizingly, this headline appeared on Reuters.com just as the Institute member and I were investigating Delaware LLCs.

Could this be the end of anonymity? …not so fast!

Turns out that the Corporate Transparency Act passed the Senate and the House with a veto-proof, bipartisan margin in December, but it doesn’t really change anything for the general public.

According to the FACT Coalition, “The Corporate Transparency Act takes the simple, yet effective step to require corporations and limited liability companies (LLCs) to disclose to law enforcement and others with legally mandated anti-money laundering responsibilities (e.g. financial institutions) information on who is the real, natural person (a.k.a. beneficial owner) who owns and controls an entity at the point of formation and update such information upon any change.”

There are many reasons why the individuals behind an LLC might want to remain anonymous. Most often in the field of fundraising I hear people describe how donors are “hiding their wealth.” This has a negative connotation, and I would encourage you to consider and speak publicly in a way that recognizes that there are other reasons for being anonymous.

To name a few: family drama; competitive edge; and people who are private in every way, not just money.

And yet, there is at least one trick to finding those elusive LLC member owners. If the LLC is incorporated in Delaware – has a domestic incorporation record in Delaware – but is doing business in another state that does NOT allow anonymity, you might find the member names in a required foreign incorporation filing.

Of course, as prospect research professionals we like to be able to assemble as many of the facts as reasonably possible, but we know that the best information is going to come directly from the donor prospect.

Hopefully, this micro investigation into Delaware LLCs helps save you time by knowing whether you might be able to find owner member names… or not!

Wish you could be a member of the Prospect Research Institute, chasing questions down rabbit holes? You can! Become a member today!

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