How to set up an LLC in Delaware (USA) – A Practical guide for Polish entrepreneurs

Piotr Kuźnicki

What is an LLC?

An LLC (Limited Liability Company) is a flexible legal structure for conducting business in the United States, particularly popular among small and medium-sized enterprises. It is also commonly chosen by Polish entrepreneurs planning expansion into the U.S. market, especially when they do not require external financing (e.g., from venture capital funds).

An LLC combines limited liability for its members (as in corporations) with a simplified organizational structure and favorable pass-through taxation, meaning no double taxation. For this reason, it is a common choice for subsidiaries of Polish companies operating globally.

This article will help you answer the following questions:

What are the core naming and structural requirements for a Delaware LLC?
Why does every LLC need a registered agent, and what are the ongoing costs?
What critical elements must be included in a written Operating Agreement?
How does default tax classification work for single-member vs. multi-member LLCs?
Why should international founders consult a US lawyer when customizing an LLC structure?

Step by step: How to form an LLC in Delaware

1. Choosing the company name and structure

1) The company name must include the designation “Limited Liability Company,” “L.L.C.,” or “LLC.”
2) The name must not be identical to any other registered entity in Delaware (check name availability here: https://icis.corp.delaware.gov/ecorp/namereserv/namereservation.aspx)

2. Appointing a registered agent Every LLC must have a registered agent with a physical address in Delaware. The agent receives official correspondence and legal documents on behalf of the company. Companies typically use professional registered agent services (such as The Corporation Trust Company or Northwest Registered Agent). The annual cost of a registered agent is approximately USD 100–300. This setup is often the preferred starting framework for a flexible US startup.

3. Preparing the Certificate of Formation The document must include:

1) the company’s name;
2) the address and details of the registered agent;
3) the incorporator’s details.

The filing fee for forming an LLC starts at USD 110. An expedited filing option (e.g., 24-hour processing) is available for an additional fee. To understand why this jurisdiction is globally favored, see our analysis on why Delaware is an attractive place to incorporate.

4. Executing the operating agreement The Operating Agreement is a key document governing the internal rules of the company. Although Delaware law permits oral or implied agreements, a written form is strongly recommended. The agreement should include, among others:

1) members’ information, capital contributions, and ownership interests;
2) the management structure: member-managed vs. manager-managed;
3) voting rules, decision-making procedures, and quorum requirements;
4) profit and loss allocation rules and tax classification;
5) transfer restrictions, rights of first refusal, tag-along and drag-along provisions;
6) modifications of fiduciary duties;
7) rules governing company dissolution and asset distribution;
8) choice of law (Delaware) and dispute resolution provisions.

The agreement should be signed by each member (and by the manager, if applicable). Crafting this document properly is a fundamental aspect of American corporate law.

5. Tax and compliance obligations The LLC must obtain an Employer Identification Number (EIN). By default, a single-member LLC is treated as a disregarded entity, while a multi-member LLC is treated as a partnership for tax purposes. An application may be filed to be taxed as a C-Corporation (Form 8832) or an S-Corporation (Form 2553). Each year, a franchise tax report must also be filed, and a tax of approximately USD 300 must be paid.

Legal support in forming an LLC

Although the LLC formation process in Delaware is relatively straightforward, there are many detailed legal and tax matters that should be reviewed with a professional who can advise on the appropriate content of the Operating Agreement and Certificate of Formation, and ensure the company’s compliance with the law. An experienced US lawyer can also assist in establishing an optimal corporate governance structure and in preparing the necessary resolutions for company formation.