At any point in the life of your business venture, you may choose to create for it a separate legal entity.  Creating a separate entity is essential for those businesses where the potential for liabilities associated with normal operations is an issue.  There are also potential tax advantages that derive from the establishment of a separate business entity.

There are two categories of business legal entities: corporations, Chapter S and C, and Limited Liability Company (LLC). Corporations are tax structures and are regulated by the federal government through the IRS.  LLCs are created and governed by the states.

Founded in the state of Wyoming in 1977 and now available in all 50 states plus Washington, D.C., the LLC is a comparatively more lenient structure than either the S or C Corporation and for this reason, it is the preferred entity for the majority of small businesses and Solopreneurs.  Unlike the S Corp, LLC members, as they are called, are unrestricted in number and are not required to be U.S. citizens nor must they reside here, with the exception of the Registered Agent, who receives official correspondence such as tax and legal documents on behalf of the entity and must reside in the state where the LLC was formed and operates.

Multi-owned LLCs are advised to develop an operating agreement (not required in all states) that along with the percentages of member ownership also specifies member titles and responsibilities, such as Managing Partner and Registered Agent.

In the LLC, whether single or multi-owned, all business income and expenses “pass through,” meaning they are reported on the members’ tax forms.  There is no double taxation of business and personal income for single-owner LLCs, but multi-owner LLCs must file U.S. Form 1065 Return of Partnership Income to report profits and losses.  All LLC owners must pay the self-employment tax, due quarterly (multi-owners pay on their share of entity ownership).

Real estate investors will find that the LLC is the only available legal entity option that allows passive income (rents) to exceed 25% of gross annual revenues.  A big added bonus of real estate LLCs is the ability to create a separate LLC for each property owned, thereby shielding the owner(s) and other properties held from cross-liabilities.

A drawback for owners who plan to attract investment partners (as opposed to those partners who operate the business) is the lack of stock, preferred or otherwise, and this represents a deal-breaker for venture capitalists, who do not invest in businesses structured as LLCs.  Even smaller investors prefer stock certificates to LLC member shares.  A positive for this structure is that it’s much less expensive to set up than are corporations, costing just a few hundred dollars for the filing (plus the initial set-up fee charged by your accountant or attorney).

If you are considering establishing a legal structure for your business, consider your plans for business growth and also your exit strategy as you do.  Growth may cause you to seek money partners, which could point you in the direction of the S Corp.  If you see venture capital or an IPO in your future, then only a C Corp will do.  If you might want to sell your company to employees as your exit strategy, or if attracting key C Suite level talent to your team would also point you toward the corporate structure, so that stock can be offered as an incentive.  If some of your business partners live outside of the U.S., or if acquiring real estate holdings is your business model, then only the LLC will be allowed.

It is strongly recommended that you consult with a business attorney or accountant before you file legal entity paperwork at the Secretary of State’s office.

Thanks for reading,

Kim

Whether you are preparing to launching a new venture or you’ve been operating as a Sole Proprietor (Sole Trader in the U.K.) for a few years, you may decide to establish a business legal entity for the enterprise. The benefits of creating a business legal entity, whether you operate as a Solopreneur or participate in a partnership that consists of independent professionals who occasionally collaborate (like dentists or physicians) or co-owners who run a business together, are:

1.) protection of business assets from (certain) financial liabilities

2.) reduced tax liability

Entrepreneurs and Solopreneurs who have no worries about legal actions that might arise from bankruptcy or other business debts (or client litigation) may comfortably operate as Sole Proprietors.  Business owners of any kind, plus the self-employed, may at some point decide to organize their venture as a corporation (either the original C Corporation or subchapter S Corporation) or a Limited Liability Company (LLC).

FYI in the U.S., corporations are tax structures that are overseen by the IRS (a federal entity) and LLCs are created and governed at the state level.  Application to form either entity is made at your state’s Secretary of State office or in Washington, D.C. at the D.C. Corporations Division.  In the U.K., business legal structures are obtained through and governed by your regional Companies House.

Regarding protection from financial liabilities derived from a business legal entity, actions that can be construed as negligence are considered to “pierce the corporate veil” and neither a C or S Corporation, nor an LLC, will shield negligent business owners.  But if the business goes into bankruptcy or serious debt, only business assets can be applied to cover those debts and if that amount is insufficient, the owner(s) will not be forced to use personal assets to pay what is owed.  Furthermore, the entity will not be liable for debts that exceed the value of the owner’s investment in that entity.  In other words, if an owner’s investment was $20K, that’s all the owner will be liable for, even if $30K is owed.

Now for a look at potential tax savings.  Unlike the older U.S. corporate structure, the C Corporation, there is no simultaneous tax of business and personal income in the S Corporation (i.e., no double taxation) and all the usual business deductions that you’ll find on IRS Schedule C  may be taken.  The S Corp allows owner(s) to pay themselves and all employees with W2 salaries, meaning that owners avoid the self-employment tax if it’s decided that you work for the corporation (instead of yourself).

A portion of what can be reasonably considered excess net profits can be paid to the owner(s) as a dividend distribution, in addition to the W2 salary, and the distribution is taxed at a much lower rate (from zero- 15%, depending on circumstances) than the W2 earnings.  This is one way that the rich get richer, Baby!

The owner’s salary must be considered reasonable for the industry, because the IRS will be looking.  Contact a savvy tax accountant so you’ll refrain from paying yourself $20K annually when $80K would be closer to the minimum for your industry and business Income Statement.  Shenanigans like that can cause the business to lose the S Corp status and land you in double-taxation-ville.

If business income is not so flush, your accountant may recommend that like a Sole Proprietor, S Corp owner(s) should choose the “pass through” tax format, where all income and expenses appear on the personal tax form(s) of the owner(s).  Be advised that partnership S Corps are taxed like a partnership and S Corps that elect the pass-through tax option will pay the quarterly self-employment tax on reported income.  Corporate taxes are filed no later than March 15, earlier than the rest of us.

In both the C and S Corp structure, the owner(s) is a stockholder, and multiple owners are assigned shares of company stock and receive a portion of business profits and losses according to their percentage of ownership. The S Corp allows only one class of stock.

On the downside, the rules for maintaining a corporate entity of either form are somewhat strict. S Corp owners must be citizens or residents of the U.S. and their number is capped at 100.  Every corporation is required to have a board of directors or officers (the owner and a Recording Secretary to take the annual meeting minutes, at least) and even solo corporation owners must hold an annual stockholder’s meeting.  Financial documents must be in good order. Minutes must be taken and kept on file.

Because there is only one class of stock allowed, those who plan to seek venture capital or take their company public must form a C  Corporation, so that the preferred stock that investors demand will be available.  Finally, the legal and accounting fees, as well as special state taxes where they apply, make the choice of either a C or S Corporation a four-figure annual commitment, so consider your choice of this option prudently.

Next week, we can resume the discussion with a look at the Limited Liability Company structure.

Thanks for reading,

Kim