(a) There shall be exempt from the payment of the excise tax levied under this part the following:

lawyer at desk

Ask a legal question, get an answer ASAP!
Click here to chat with a lawyer about your rights.

Terms Used In Tennessee Code 67-4-2008

  • Affiliated group: means :
    (i) A taxpayer that, standing alone, is subject to the Tennessee franchise tax. See Tennessee Code 67-4-2004
  • Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
  • Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
  • Code: includes the Tennessee Code and all amendments and revisions to the code and all additions and supplements to the code. See Tennessee Code 1-3-105
  • Commercial domicile: means the principal place from which the trade or business of a business entity is directed or managed. See Tennessee Code 67-4-2004
  • Commissioner: means the commissioner of revenue. See Tennessee Code 67-4-2004
  • Compensation: means wages, salaries, commissions and any other form of remuneration paid to employees for personal services. See Tennessee Code 67-4-2004
  • Contract: A legal written agreement that becomes binding when signed.
  • Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
  • Descendent: One who is directly descended from another such as a child, grandchild, or great grandchild.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
  • General partnership: means a partnership in which all partners, as defined by state law, are fully liable for the debts of, or the claims against, the partnership. See Tennessee Code 67-4-2004
  • Grantor: The person who establishes a trust and places property into it.
  • Internal Revenue Code: means title 26 of the United States Code as effective during the year in which net earnings are determined under this part. See Tennessee Code 67-4-2004
  • Investment securities: means , for purposes of this section, any note, United States treasury securities, obligations of United States government agencies and corporations, obligations of state and political subdivisions, corporate debt securities, participations in securities backed by mortgages held by the United States or state government agencies, loan-backed securities, bonds, debentures, evidence of indebtedness, and other similar debt investments. See Tennessee Code 67-4-2004
  • Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
  • Liabilities: The aggregate of all debts and other legal obligations of a particular person or legal entity.
  • Lineal descendant: Direct descendant of the same ancestors.
  • Month: means a calendar month. See Tennessee Code 1-3-105
  • Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
  • Not-for-profit: means any person described in §. See Tennessee Code 67-4-2004
  • Obligated member: means a member or partner of an obligated member entity that is fully liable for the debts, obligations and liabilities of the entity, as provided in §. See Tennessee Code 67-4-2004
  • Obligated member entity: means a limited liability company, limited partnership or limited liability partnership, all of whose members or partners are fully liable for the debts, obligations and liabilities of the entity, as provided in §. See Tennessee Code 67-4-2004
  • Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
  • Person: includes a corporation, firm, company or association. See Tennessee Code 1-3-105
  • Property: includes both personal and real property. See Tennessee Code 1-3-105
  • Sales: means all gross receipts of the taxpayer not allocated under this part. See Tennessee Code 67-4-2004
  • Securities: means United States treasury securities, obligations of United States government agencies and corporations, obligations of state and political subdivisions, corporate stock and other securities, participations in securities backed by mortgages held by the United States or state government agencies, loan-backed securities and similar investments. See Tennessee Code 67-4-2004
  • State: means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States and any foreign country or political subdivision thereof. See Tennessee Code 67-4-2004
  • Tort: A civil wrong or breach of a duty to another person, as outlined by law. A very common tort is negligent operation of a motor vehicle that results in property damage and personal injury in an automobile accident.
  • Trustee: A person or institution holding and administering property in trust.
  • United States: includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
  • written: includes printing, typewriting, engraving, lithography, and any other mode of representing words and letters. See Tennessee Code 1-3-105
  • Year: means a calendar year, unless otherwise expressed. See Tennessee Code 1-3-105
(1) Any corporation organized under the laws of Tennessee whose sole expressed corporate purpose is for the furthering of industrial development in communities throughout the state, and doing matters related thereto, and whose stockholders receive no income other than interest or dividends on money invested in such corporation for constructing industrial buildings and whose officers receive no compensation;
(2) Corporations organized for the purpose of erecting, owning or operating a common meeting place for more than one (1) Masonic lodge, more than one (1) Lodge of Odd Fellows, or similar lodges, and which corporations could obtain general welfare charters, and in which corporations all the stock is owned by lodges participating in the common temple or meeting place, regardless of the type of charter held by such operating corporations, except on income received by such corporations as rentals for use for commercial purposes;
(3) Any regulated investment company or investment fund organized as a unit investment trust taxable as a grantor trust under 26 U.S.C. §§ 671-677; provided, that not less than seventy-five percent (75%) of the value of the investments of such regulated investment company or unit investment trust shall be in any combination of bonds of the United States, Tennessee, or any county or any municipality or political subdivision of the state, including any agency, board, authority or commission of the state or its subdivisions;
(4) Federal credit unions, credit unions organized under the laws of other taxing jurisdictions, production credit associations organized under 12 U.S.C. § 2071 et seq., or merged associations under 12 U.S.C. § 2279c-1, production credit associations organized under title 56, chapter 4, part 4, or investment companies organized under title 56, chapter 4, part 3;
(5) Venture capital funds; provided, that, for purposes of this part, a venture capital fund is a limited liability company, limited liability partnership, limited partnership, or business trust, formed and operated for the exclusive purpose of buying, holding, and/or selling securities, including debt securities, primarily in nonpublicly traded companies on its own behalf and not as a broker, and the capital of which fund is primarily derived from investments by entities and/or individuals that are not affiliated with the fund or investments by one (1) or more affiliates, if the affiliates also qualify as venture capital funds under this subdivision (a)(5). For purposes of this subdivision (a)(5), the following provisions shall apply:

(A) “Affiliated” means entities that are affiliates or part of an affiliated group;
(B) “Nonpublicly traded companies” means any business entity that is not a publicly traded company;
(C) “Primarily” means over fifty percent (50%); and
(D) “Publicly traded company” is any company that is traded on:

(i) A national securities exchange registered under § 6 of the Securities Exchange Act of 1934 or exempted from registration under such act by 15 U.S.C. § 78f because of the limited volume of transactions;
(ii) A foreign securities exchange operating under principles analogous to a national securities exchange;
(iii) A regional or local exchange;
(iv) An interdealer quotation system that regularly disseminates firm buy or sell quotations by identified brokers or dealers by electronic means or otherwise; or
(v) On a secondary market or the substantial equivalent of a secondary market, if taking into account all of the facts and circumstances, the owners are readily able to buy, sell or exchange their ownership interest in a manner that is comparable, economically, to trading on an exchange;
(6) Limited liability companies, limited partnerships, and limited liability partnerships, if all of the following criteria are met:

(A) At least sixty-six and sixty-seven hundredths percent (66.67%) of the activity of the entity is either farming or the holding of one (1) or more personal residences where one (1) or more of the members or partners reside. For purposes of this subdivision (a)(6)(A), the following provisions shall apply:

(i) “Farming” is the growing of crops, nursery products, timber or fibers, such as cotton, for human or animal use or consumption; the keeping of horses, cattle, sheep, goats, chickens or other animals for human or animal use or consumption; the keeping of animals that produce products, such as milk, eggs, wool or hides for human or animal use or consumption; or the leasing of the land to be used for the purposes described in this subdivision (a)(6)(A);
(ii) For this purpose, the activity of the entity shall be considered farming only if at least sixty-six and sixty-seven hundredths percent (66.67%) of its income, including capital gains from the sale of land and other assets used in farming, is derived from farming and at least sixty-six and sixty-seven hundredths percent (66.67%) of its assets, valued at original cost to the entity, are used by the owner or by the owner’s lessee or sharecropper for farming. In the event that an asset’s original cost to the entity cannot be determined, or there is no original cost to the entity, for purposes of this subdivision (a)(6)(A), the property shall be valued at its fair market value at the time of acquisition by the entity;
(iii) A “personal residence” or “personal residences,” as used in subdivision (a)(6)(A), includes acreage contiguous to the dwelling;
(iv) Any entity that qualifies for franchise tax exemption under this subdivision (a)(6), because of farming activity or because the property has been used as a personal residence for at least five (5) years, shall remain exempt for one (1) year from the end of the calendar year in which it ceases to qualify for the exemption, but only with regard to property and transactions related to property that it held at the time that it last qualified for the exemption. Net worth resulting from sales and other transactions involving real, tangible, or intangible property acquired by the entity after it ceased to qualify for the exemption (after-acquired property) shall be subject to the franchise tax. After-acquired property shall be included in the entity’s franchise tax minimum measure. If the entity computes an apportionment formula, any after-acquired property and any compensation or gross receipts related to such property shall be included in the appropriate factors of such formula; and
(v) In order to qualify as a personal residence, the dwelling unit must be occupied for personal use by partners or members of the entity for more days than it is rented to others who are not partners or members of the entity. For purposes of this subdivision (a)(6), Internal Revenue Code § 280A(d)(2) (26 U.S.C. § 280A(d)(2) shall be used to define ”personal use”;
(B) At least ninety-five percent (95%) of the voting rights, capital interest or profits of the entity are owned either by natural persons who are relatives of one another or by trusts for their benefit. For this purpose, natural persons shall be considered relatives, if, by blood or adoption, they are descended from a common ancestor and their relationship with each other is that of a first cousin or closer than that of a first cousin, or if they are spouses of one another;
(7) Limited liability companies, limited liability partnerships, limited partnerships, or business trusts existing on May 1, 1999, on which date and at all times thereafter met all of the following criteria:

(A) Were at least ninety-eight percent (98%) owned by corporate members of an affiliated group as defined in 26 U.S.C. § 1504(a);
(B) Were formed and operated for the exclusive purpose of acquiring notes from members of such affiliated group, accounts receivable, installment sale contracts, and similar evidence of indebtedness obtained in the ordinary course of business by one (1) or more members of such affiliated group;
(C) The assets of which directly or indirectly serve as security for third party borrowings or securitized indebtedness acquired by third parties;
(D) At least eighty percent (80%) of the income therefrom is included in the income of a corporation doing business in Tennessee; and
(E) Such income is subject to the applicable allocation and apportionment rules as found in this part;
(8) Any limited partnership or limited liability company organized exclusively for the purpose of providing affordable housing that meets the following criteria:

(A) The entity must have received an allocation of low-income housing tax credits pursuant to § 42 of the Internal Revenue Code of 1986 (26 U.S.C. § 42); and
(B) An “extended low-income housing commitment” as defined in § 42(h)(6)(B) of the Internal Revenue Code of 1986 (26 U.S.C. § 42(h)(6)(B)) must be in effect with respect to each residential building owned by the entity for the period covered by the return;
(9) Obligated member entity; provided, that:

(A) For tax years beginning before January 2, 2000, the appropriate documentation, as required in subsections (b)-(d), shall be filed on or before September 15, 2000, with the secretary of state;
(B) For tax years beginning on or after July 2, 2004, but before August 1, 2005, the appropriate documentation, as required in subsections (b)-(d), shall be filed on or before August 1, 2005, with the secretary of state;
(C) For tax years beginning on or after July 1, 2008, but before October 1, 2009, the appropriate documentation, as required in subsections (b)-(d), shall be filed on or before October 1, 2009, with the secretary of state. For all other tax years, the appropriate documentation, as required in subsections (b)-(d), shall be filed on or before the first day of the taxable year for which a return is filed;
(D) To the extent that any obligated member, or any owner of an obligated member, provides limited liability protection, the obligated member entity shall owe the tax otherwise imposed by this part, and by part 21 of this chapter, on the portion of income and equity attributable to such obligated member. For purposes of this subdivision (a)(9)(D), ownership includes any form of ownership, whether in whole, in part, direct or indirect. Also, for purposes of this subdivision (a)(9)(D), estates, trusts that are not taxpayers, not-for-profit entities, or other entities exempt under this section, shall not be deemed to provide limited liability protection;
(E) If an additional obligated member is admitted to the obligated member entity, such obligated member must file the appropriate documentation with the secretary of state within sixty (60) days of such member’s admission; and
(F) For purposes of this subdivision (a)(9), obligated members may be fully liable, even though one (1) or more persons or individuals dealing with the obligated member entity have, by contract, agreed to limit their claims against one (1) or more obligated members or against the obligated member entity;
(10) An entity that satisfies both of the following requirements:

(A) It:

(i) Is classified as a partnership or trust in accordance with 26 U.S.C. § 7701, and the federal regulations and rulings promulgated under 26 U.S.C. § 7701;
(ii) Has elected to be treated as a real estate mortgage investment conduit (REMIC) under 26 U.S.C. § 860D;
(iii) Has elected to be treated as a financial asset securitization investment trust (FASIT) under 26 U.S.C. § 860L; or
(iv) Is a business trust, as defined in § 48-101-202(a), or is classified as a trust under the laws of the state in which it is created and is disregarded for federal income tax under 26 U.S.C. § 7701, and the federal regulations and rulings promulgated under 26 U.S.C. § 7701, when the commercial domicile of the trustee is not in this state; and
(B)

(i) The sole purpose of the entity, except for foreclosures and dispositions of the assets of foreclosures, is the asset-backed securitization of debt obligations, such as first or second mortgages, including home equity loans, trade receivables, whether an open account or evidenced by a note or installment or conditional sales contract, obligations substituted for trade receivables, credit card receivables, personal property leases treated as debt for purposes of the Internal Revenue Code of 1986, home equity loans, automobile loans or similar debt obligations;
(ii) “Trade receivables” as used in subdivision (a)(10)(B)(i) means obligations arising from the sale of inventory in the ordinary course of business;
(11)

(A) Any family-owned noncorporate entity, where substantially all the activity of the entity is either:

(i) The production of passive investment income; or
(ii) The combination of the production of passive investment income and farming as defined in (a)(6)(A)(i);
(B) For purposes of this subdivision (a)(11):

(i) “Family-owned” means that at least ninety-five percent (95%) of the ownership units of the entity are owned by members of the family, which means, with respect to an individual, only:

(a) An ancestor of such individual;
(b) The spouse or former spouse of such individual;
(c) A lineal descendent of such individual, of such individual’s spouse or former spouse, or of a parent of such individual;
(d) The spouse or former spouse of any lineal descendent described in subdivision (a)(11)(B)(i)(c); or
(e) The estate or trust of a deceased individual who, while living, was as described in any of subdivisions (a)(11)(B)(i)(a)-(d);
(ii) A legally adopted child of an individual shall be treated as the child of such individual by blood;
(iii) “Passive investment income” means gross receipts derived from royalties, rents from residential property or farm property, dividends, interest, annuities, and sales or exchanges of stock or securities to the extent of any gains therefrom;
(iv) “Farm property” and “residential property” have the same meaning as in § 67-5-501, except that “residential property” includes any property leased or rented for residential purposes that includes not more than four (4) residential units and “farm property” does not include acreage used for recreational purposes by clubs including golf course playing hole improvements;
(v) Ownership units that are held in trust shall not be treated as owned by members of the family, unless the ownership units are property of a trust described in subdivision (a)(11)(B)(i)(e);
(12)

(A) Diversified investing funds; provided, that, for purposes of this part, a diversified investing fund is a limited liability company, limited liability partnership, limited partnership or business trust that meets all of the following requirements:

(i) No less than ninety percent (90%) of the diversified investing fund’s cost of its total assets consist of qualifying investment securities, deposits at banks or other financial institutions, and office space and equipment reasonably necessary to carry on its activities as a diversified investing fund;
(ii) No less than ninety percent (90%) of its gross income consists of interest, dividends, and gains from the sale or exchange of qualifying investment securities; and
(iii) Is formed and operated for the primary purpose of buying, holding, or selling qualifying investment securities, on its own behalf and not as a broker, and the capital of which fund is primarily derived from investments by entities or individuals who are not affiliated with the fund;
(B) For purposes of this subdivision (a)(12), the following provisions shall apply:

(i) “Affiliated” means entities that are affiliates or part of an affiliated group. As applied to individuals, “affiliates” means any natural person who, directly or indirectly, has more than fifty percent (50%) ownership interest in the fund. For purposes of this subdivision (a)(12)(B)(i), indirect ownership by an individual includes ownership by any family member of the individual, which means, with respect to the individual:

(a) An ancestor of the individual;
(b) The spouse or former spouse of the individual;
(c) A lineal descendant of the individual, of the individual’s spouse or former spouse or of a parent of the individual;
(d) The spouse or former spouse of any lineal descendant described in subdivision (a)(12)(B)(i)(c); or
(e) The estate or trust of a deceased individual who, while living, was as described in any of the subdivisions (a)(12)(B)(i)(a)-(d);
(ii) “Primary” and “primarily”, over fifty percent (50%); and
(iii) “Qualifying investment securities” include all of the following:

(a) Common stock, including preferred, or debt securities convertible into common stock, and preferred stock;
(b) Bonds, debentures, and other debt securities;
(c) Foreign and domestic currency deposits or equivalents and securities convertible into foreign securities;
(d) Mortgage or asset-backed securities secured by federal, state, or local governmental agencies;
(e) Repurchase agreements and loan participations;
(f) Foreign currency exchange contracts and forward and futures contracts on foreign currencies;
(g) Stock and bond index securities and futures contracts, and other similar financial securities and futures contracts on those securities;
(h) Options for the purchase or sale of any of the securities, currencies, contracts, or financial instruments described in subdivisions (a)(12)(B)(iii)(a)-(g), inclusive;
(i) Warrants to purchase stock or an ownership interest in an entity;
(j) An ownership interest in a limited liability company, limited liability partnership, limited partnership, or business trust; and
(k) An ownership interest in a general partnership that would otherwise qualify as a diversified investing partnership under this subdivision (a)(12) were it not for its legal status as a general partnership;
(13) Tennessee historic property preservation or rehabilitation entities;
(14) Insurance companies, as defined in § 56-1-102;
(15) Any qualified TNInvestco, as defined in § 4-28-102, that has received an allocation of investment tax credits under the Tennessee Small Business Investment Company Credit Act, compiled in title 4, chapter 28, and continues to participate in the program established by such act;
(16) Any entity that:

(A) Is owned, in whole or in part, directly by a branch of the armed forces of the United States; and
(B) Derives more than fifty percent (50%) of its gross income from the operation of facilities that are located on property owned or leased by the federal government and operated primarily for the benefit of members of the armed forces of the United States; and
(17)

(A)

(i) Any qualified low-income community historic structure owner;
(ii) Any qualified low-income community historic structure lessee; or
(iii) Any entity that directly or indirectly owns an interest in a qualified low-income community historic structure owner, a qualified low-income community historic structure lessee, or both, and that has no business operations or assets other than:

(a) Its investment in the qualified low-income community historic structure owner, the qualified low-income community historic structure lessee, or both;
(b) Business operations and assets incidental to its investment in the qualified low-income community historic structure owner, the qualified low-income community historic structure lessee, or both; and
(c) De minimis other operations and assets;
(B) For purposes of this subdivision (a)(17):

(i) “Qualified low-income community historic structure” means a “certified historic structure,” as defined in § 47 of the Internal Revenue Code (26 U.S.C. § 47), together with any associated contiguous real estate, located in a “low-income community,” as defined in § 45D of the Internal Revenue Code (26 U.S.C. § 45D), and with respect to which more than one hundred million dollars ($100,000,000) of “qualified rehabilitation expenditures,” as defined in § 47 of the Internal Revenue Code (26 U.S.C. § 47), are incurred after January 1, 2015;
(ii) “Qualified low-income community historic structure lessee” means a limited liability company that leases or subleases substantially all of a qualified low-income community historic structure and that has no business operations or assets other than:

(a) Its lease or sublease of the qualified low-income community historic structure;
(b) Operations and assets incidental to leasing and subleasing of the qualified low-income community historic structure; and
(c) De minimis other operations and assets;
(iii) “Qualified low-income community historic structure owner” means a limited liability company that owns a qualified low-income community historic structure and that has no business operations or assets other than:

(a) Its investment in the qualified low-income community historic structure;
(b) Business operations and assets incidental to the ownership, financing, and leasing of the qualified low-income community historic structure; and
(c) De minimis other operations and assets; and
(iv) Any references to the Internal Revenue Code in this subdivision (a)(17) means the Internal Revenue Code in effect on January 1, 2015.
(b)

(1) Notwithstanding any law to the contrary, the certificate of a limited partnership may provide that one (1) or more specifically identified limited partners, as named in the certificate of limited partnership, shall be personally liable for all of the debts, obligations and liabilities of the limited partnership to the same extent as a general partner, and if so, each such specifically identified limited partner shall be liable to the same extent as a general partner in a general partnership; provided, that:

(A)

(i) In order to be effective, each limited partner so identified must sign the certificate of limited partnership, or an amendment to the certificate of limited partnership containing this provision and such signature must be notarized. The certificate or amendment must contain the following two (2) sentences in all capitalized letters:

“THE EXECUTION AND FILING OF THIS DOCUMENT WILL CAUSE SUCH LIMITED PARTNER TO BE PERSONALLY LIABLE FOR THE DEBTS AND OBLIGATIONS OF THE LIMITED PARTNERSHIP TO THE SAME EXTENT AS A GENERAL PARTNER. PLEASE CONSULT YOUR ATTORNEY.”

(ii) The amendment or certificate may provide that it is only effective if all limited partners make and maintain such an election. In such case the certificate of limited partnership must affirmatively identify each general and limited partner of the limited partnership and state that such persons constitute all partners;
(B) Each such limited partner shall continue to be personally liable for all of the debts, obligations and liabilities of the partnership to the same extent as a general partner would be until:

(i) Such limited partner withdraws from the partnership and the withdrawal is recorded with the certificate of limited partnership at the secretary of state’s office; or
(ii) The certificate of limited partnership is amended to strike such limited partner’s name as a limited partner electing joint and several liability or, if the certificate of limited partnership provides that all limited partners must elect joint and several personal liability for all of the debts, obligations and liabilities of the limited partnership if any limited partners are to be so liable, an amendment striking one (1) limited partner who continues to be a limited partner shall strike all limited partners. Such document must be executed by the limited partner desiring to cease being so liable and promptly delivered to the general partner or partners and all other partners who are identified in the certificate of limited partnership as being jointly and severally personally liable for the debts, obligations and liabilities of the limited partnership; and
(C) Such limited partnership must have a written partnership agreement that sets forth in reasonable detail:

(i) The purpose of the limited partnership;
(ii) The identity of each general partner;
(iii) The scope of authority within the limited partnership of one or more of the general partners to incur debt or other obligations in the absence of limited partner approval;
(iv) The fact that each limited partner electing to have joint and several liability shall be liable for all the debts and obligations of the limited partnership whether arising by contract, tort, or otherwise or from the actions of the general partner or partners or other limited partners in furtherance of the limited partnership’s business or other activity;
(v) The fact that each limited partner may revoke such partner’s election to have joint and several unlimited liability and remain a limited partner; and
(vi) The terms and conditions under which one (1) or more general partners may be removed or the limited partnership dissolved and terminated.
(2) A limited partner who is identified in the certificate of limited partnership as being personally liable always has the power, but not necessarily the right, to revoke the election for joint and several liability for the limited partnership’s debts and obligations by filing an amendment to the certificate of limited partnership stating that such limited partner revokes such limited partner’s election to be personally liable and shall not be liable for any future debts, obligations and liabilities of the limited partnership. Such amendment to the certificate shall be effective immediately except as provided in subdivision (b)(3).
(3) An amendment to the certificate of limited partnership filed pursuant to subdivision (b)(2) is not effective against such parties reasonably relying upon such certificate until the passage of ninety (90) days from the filing of the amendment to the certificate of limited partnership. Nevertheless, such limited partner or former limited partner shall continue to be liable for all of the debts, obligations and liabilities of the limited partnership incurred by the limited partnership while such limited partner assumed such liability, including, if applicable, the ninety-day period.
(c)

(1) Notwithstanding any law to the contrary, the application of registered limited liability partnership may provide that one (1) or more specifically identified partners, as named in the application, shall be personally liable for all of the debts, obligations and liabilities of the registered limited liability partnership to the same extent as a general partner of a general partnership; provided, that:

(A)

(i) In order to be effective, each partner so identified must sign the application of registered limited liability partnership, or an amendment to the application of registered limited liability partnership containing this provision and such signature must be notarized. The application or amendment must contain the following two (2) sentences in all capitalized letters:

“THE EXECUTION AND FILING OF THIS DOCUMENT WILL CAUSE SUCH PARTNER TO BE PERSONALLY LIABLE FOR THE DEBTS AND OBLIGATIONS OF THE LIMITED LIABILITY PARTNERSHIP TO THE SAME EXTENT AS A GENERAL PARTNER OF A GENERAL PARTNERSHIP. PLEASE CONSULT YOUR ATTORNEY.”

(ii) The amendment or application may provide that it is only effective if all partners make and maintain such an election. In such case the application of registered limited liability partnership must affirmatively identify each partner of the limited liability partnership and state that such persons constitute all partners; and
(B) Each such partner shall continue to be personally liable for all of the debts, obligations and liabilities of the partnership to the same extent as a general partner of a general partnership until:

(i) Such partner withdraws from the partnership and the withdrawal is recorded with the application at the secretary of state’s office; or
(ii) The application of registered limited liability partnership is amended to strike such partner’s name as a partner electing joint and several liability or, if the application of limited liability partnership provides that all partners must elect joint and several personal liability for all of the debts, obligations and liabilities of the partnership if any are to be so liable, an amendment striking one (1) partner who has not withdrawn and continues to be a partner shall strike all partners. Such document must be executed by the partner desiring to cease being so liable and promptly delivered to all remaining partners who are identified in the application of registered limited liability partnership as being jointly and severally personally liable for the debts, obligations and liabilities of the partnership to the same extent as a general partner of a general partnership.
(2) Such limited liability partnership must have a written partnership agreement that sets forth in reasonable detail:

(A) The purpose of the partnership;
(B) The identity of each partner;
(C) The scope of authority within the partnership of one (1) or more of the partners to incur debt or other obligations in the absence of partner approval;
(D) The fact that each partner electing to have joint and several liability shall be liable for the all debts and obligations of the partnership whether arising by contract, tort, or otherwise or from the actions of the other partners in connection with the partnership’s business or other activity;
(E) The fact that each partner has the power to revoke such partner’s election to have joint and several unlimited liability and remain a partner; and
(F) The terms and conditions under which one (1) or more partners may be removed or the partnership dissolved and terminated.
(3) A partner, who is identified in the application of a limited liability partnership as being personally liable, always has the power, but not necessarily the right, to revoke the election for joint and several liability for the partnership’s debts and obligations by filing an amendment to the application of limited liability partnership stating that such partner has revoked such partner’s election to be liable for the debts and obligations of the partnership and shall not be liable for any future debts, obligations and liabilities of the partnership. Such amendment to the application shall be effective immediately except as provided in subdivision (c)(4).
(4) An amendment to the application of a limited liability partnership filed pursuant to § 61-1-1001 is not effective against such parties reasonably relying upon such application until the passage of ninety (90) days from the filing of the amendment to the application of limited liability partnership. Notwithstanding the preceding, such partner or former partner will continue to be liable for all of the debts, obligations and liabilities of the partnership incurred by the partnership while such partner assumed such liability.
(d) Notwithstanding any law to the contrary, the articles of a limited liability company may provide that one (1) or more specifically identified members, as named in the articles, will be personally liable for all of the debts, obligations and liabilities of the limited liability company and, if so, each such specifically identified member shall be liable to the same extent as a general partner in a general partnership; provided, that:

(1) In order to be effective, each member so identified must sign the articles, or an amendment to the articles containing this provision. The amendment or articles may provide that it is only effective if all members make and maintain such an election. In such case, the articles must affirmatively identify each member and state that such persons constitute all of the members of the limited liability company; and
(2) Each such member shall continue to be personally liable for all of the debts, obligations and liabilities of the limited liability company to the same extent as a general partner of a general partnership until:

(A) The member withdraws from the limited liability company; or
(B) The articles are amended to strike such member’s name as a member electing joint and several liability or, if the articles provide that all members must elect joint and several personal liability for all of the debts, obligations and liabilities of the limited liability company if any are to be so liable, an amendment striking one (1) member who continues to be a member shall strike all members. The document must be executed by the member desiring to cease being so liable and promptly delivered to any remaining members who are identified in the articles as personally being jointly and severally liable for the debts, obligations and liabilities of the limited liability company.
(e) Each person who, pursuant to subdivision (a)(11), enjoys exempt status from franchise and excise taxes shall periodically file such forms and report such information as the commissioner of revenue reasonably prescribes regarding the family-owned noncorporate entity and the family members participating in the family-owned noncorporate entity.
(f)

(1) Every person claiming exemption from taxation under this section shall file an application for exemption upon a form prescribed by the commissioner. The application shall be filed on or before the fifteenth day of the fourth month following the close of the first tax year for which the person claims the exemption.
(2) Every person claiming exemption from taxation under this section that has previously filed an application for exemption in accordance with subdivision (f)(1) shall, on or before the fifteenth day of the fourth month following the close of the person’s tax year, file an application for renewal of exemption upon a form prescribed by the commissioner.
(3) No person shall be exempt from taxation under this section until the person has filed the application required by subdivision (f)(1) or (f)(2). The commissioner is authorized to accept an application that is filed after the time periods provided in subdivisions (f)(1) and (2). However, when any person fails to timely file the application, there shall be imposed a penalty in the amount of two hundred dollars ($200) per occurrence. The commissioner is authorized to waive the penalty, in whole or in part, for good and reasonable cause under § 67-1-803.
(4) Any person who claims an exemption under this section but fails to meet the criteria for exemption shall be subject to all tax, penalty and interest otherwise applicable under the law.
(5) Notwithstanding subdivisions (f)(1)-(4) to the contrary, the requirements in this subsection (f) shall not apply to any person that qualifies for exemption under subdivision (a)(1), (a)(2), (a)(3), (a)(4), (a)(13), (a)(14) or (a)(15).
  Previous section
Next section  
 Part 20 Contents