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“based on the facts and circumstances at the time of the
determination.” Sec. 1.752-2(b)(3), Income Tax Regs. Such facts
and circumstances take into account all statutory and contractual
obligations relating to the partnership liability, including
contractual obligations outside of the partnership agreement such
as guaranties. Id. Further, the regulations assume that all
partners and related persons who have obligations actually
perform those obligations, “unless the facts and circumstances
indicate a plan to circumvent or avoid the obligation.” Sec.
1.752-2(b)(6), Income Tax Regs.
Initially, we must determine whether Indeck Overseas, as a
member of IPO II, was required by statute, by IPO II’s operating
agreement, or by any other contractual arrangements it entered
into to directly pay the Nationsbanc loan or any other
obligations of IPO II. The Illinois Limited Liability Company
Act (LLC Act) provides, in relevant part:
� 10-10. Liability of members and managers.
(a) Except as otherwise provided in subsection (d) of this
Section, the debts, obligations, and liabilities of a
limited liability company, whether arising in contract,
tort, or otherwise, are solely the debts, obligations, and
liabilities of the company. A member or manager is not
personally liable for a debt, obligation, or liability of
the company solely by reason of being or acting as a member
or manager.
* * * * * * *
(d) All or specified members of a limited liability company
are liable in their capacity as members for all or specified
debts, obligations, or liabilities of the company if:
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Last modified: May 25, 2011