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I'm in the process of establishing an LLC - before the formation how should I pay LLC and new business related expenses?

Buffalo, NY |

It could be weeks before the filing is complete, I have 2 other members. We want to make capital contributions equally should the checks be payable to the LLC?
Also, I've paid some expenses already how do I get the funds paid back by the LLC?
If in the form of a loan do you recommend template?

Attorney Answers 3


  1. All of this can be contained and accounted for in your operating agreement. The capital contributions can be payable to the LLC/business bank account after its formation (keep in mind that you and your fellow members are liable for these contributions, so keep them to a minimum). Put a provision in the operating agreement to account for the funds that you have paid out of pocket, and when the LLC is established pay yourself back (keep good records, these fees are tax deductible).

    Ideally, you may want to retain a business attorney to help with all of the issues associated with starting a business. Many, including myself, offer free consultations. Good luck on your new business.

    McGrath Law Firm, PLLC www.thebuffalolawyer.com Buffalo, NY Attorney-Client Relationship - The materials provided on this website are intended for informational purposes only. These materials are not intended and should not be interpreted or considered legal advice. The information provided by this site is not an invitation to an attorney-client relationship. A reader of this site should not rely on the information provided here for any purpose. Readers are reminded to always seek legal advice from an attorney duly licensed in an appropriate jurisdiction. Additionally, any communication via e-mail, phone, or other form, are not intended to solicit or create, and does not create, an attorney-client relationship between this firm and any third party. Legal Warranty - This website provides general information and may not reflect all current legal developments. You should not take action based on the information provided by this website. The law is ever changing, and facts and circumstances are critical to assessing a legal claim; therefore, information provided by this site may not be applicable to your particular situation, and should not be perceived as legal advice or opinion.


  2. Mr. McGrath makes several good points.

    You can provide for contributions to capital, for treatment of part as a loan, and numerous other options if you have an attorney and CPA to guide you. These are simple to many of the questions you really need to be asking, like what happens of one of us becomes disabled, dies or want to sell out (the answer is a buy-sell agreement before the event setting forth a formula and timing for a buyout.)

    The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.


  3. If the entity is not yet formed but you are writing personal checks benefitting the LLC then that us fine to do as you can simply treat such expenditures as your capital contribution and/or loan to the LLC if you desire to have a capital structure that is comprised of member capital contributions as well as member loans. I enclose some sample lingo from an Operating Agreement for one of my clients where the capital vs. loan concept is made clear:

    3.5 Member Loans.

    3.5.1 In the event the Company needs additional funds to fund its operations, any Member may loan additional monies to the Company as agreed to between the Company and the Member making such loan (a “Member Loan”).

    3.5.2 All Member Loans shall accrue interest at 300 basis points over the “prime rate" published in The Wall Street Journal on the last day of the month.

    3.5.3 Such lending Member shall have the same rights to repayment of any payments made in respect such loan in accordance with its respective terms and conditions as would any creditor who makes such loan and who was not a Member. Member Loans are liabilities of the Company and not considered additional Capital Contributions made by such lending Member.

    3.5.4 Member Loans shall be repaid in accordance with the terms and conditions set forth in the specific promissory note issued by the Company to the lending Member and the Manager will not make any distributions of Available Cash to the Members (See ARTICLE 5) if such Member Loan is in “payment default” as such term is defined in the underlying promissory note.

    3.5.5 The Members agree that an initial Member Loan is required to fund start-up costs and working capital needs for the Company’s first 12-24 months of operations, such Member Loan amount set forth on Schedule A attached hereto and evidenced by a certain revolving line of credit, a copy of which is attached hereto as EXHIBIT I and incorporated herein by reference.

    My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained.

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