In the balance of economics, the incorporation can not only be a beneficial decision, it can also be the demise. Certain aspects should be taken into consideration before even starting the process, including which direction to go. As the owner of a company you need to be willing to take sensible risks to continue your movement forward.
Let’s explore the five main types of corporations. On each, we will discuss their pros and cons. What liability risks each type offer, and where you fall in regards to taxes on each.
In the very basic of terms, an S Corporation is a company that has decided to use Sub-chapter S of the IRS Code as proposed in Chapter 1. This means the corporation does not pay income taxes. They in turn divide all profit and losses among their shareholders who in turn must report it on their income taxes.
From the stand point of taxes, you immediately limit the amount of taxation your company will receive. Unless you also classify yourself as a C Corporation, mixing both of these puts you into a double taxation bracket that will become costly for all parties involved. This is largely due to your profits being taxed and then your shareholders profits being taxed as well.
If an S Corporation has employees, as opposed to independent contractors, they are required to still pay FICA taxes on the employee’s payroll. The employee must still pay all required State, County and Federal taxes as required by law.
Since the S Corporation does not have to pay taxes on its profits, the burden remains on the shareholders of the company. The largest portion of which is the owner or co-owners of the company. So if you own 50% of the available shares, you will be required to pay 50% of the profit or loss tax on your company for the year.
Here are some key factors you must keep in mind if you are choosing to become an S Corporation:
You must be eligible to claim S Corporation Status. Which means you must be a domestic corporation or be a registered LLC. Only one stock class is allowed. The maximum number of shareholders your company can have is 100. (Spouses can be claimed as a single shareholder, as can direct family members that are descended from a common ancestor. They in turn have to agree to this classification however.) All shareholders must be U.S. Residents and must be natural people. You cannot have shares to corporations or other companies, with a few minor exceptions. Such as a 501(c) (3) corporation. Every profit or loss should be applied proportionately to each shareholder. For example, if you make a $500 profit, a person with 25% interest in the company would receive $125.00.
Outside of the tax benefits you should also remain aware of the liability that an S Corporation carries. Although it is classified as a company where Shareholders have limited legal liability, it doesn’t mean it is completely free from legal liability.
They are still responsible for the company based on their share percentage in the following circumstances, and have the potential to have their loss exceed if the following are found:
A Court determines the company is fraudulent. Corporate formalities have been neglected. Starting capital must have been enough for initial success. Personal assets have been added to cover expenses.
All officers, employees, agents and directors of the company are help personally responsible in the events that any liability arises as a result of their services. However, certain individuals in those categorizes can get indemnified for a cost. It will however only cover costs and expenses that arise from certain tasks. It does not remove legal responsibility.
Additionally, the company as whole can be protected from one person’s mistakes through insurance several companies offer in regards to liability. Any company dealing with potential bodily injury should register for insurance.
Next, we will look at C Corporations. In very basic terms, A C Corporation is a company that is designated to be taxed under Sub-chapter C of the IRS Code. A majority of companies act as C Corporations. If you miss the minimum requirements of an S Corporation by one qualification, it is typically where your company fits best.
The main difference between the C Corporation and the S Corporation is the number of individuals allowed to “own” the company. Meaning you can have more than 100 shareholders.
Additionally, other corporations can own shares in the C Corporation, as well as foreign and domestic shareholders. This is considered a universal shareholder account. But unlike an S Corporation, the C Corporation is taxed on its profits. In turn the Shareholders are taxed on their earnings after that.
However, before a C Corporation can be formed, the following steps must be done: A Corporation Name must be established based on State Rules. All Director Positions must be filled in advance. The Articles of Corporation must be completed with the fees posted. An approved corporate bylaw must be completed with a plan to follow. One initial meeting must have occurred with the board of directors. Stock Certificates must have been issued for the initial owners. License and Permits must be obtained and approved. You must keep records of annual reports and meetings on file at all times.
Liabilities for a C Corporation are similar to the S Corporation.
Limited Liability Company (LLC)
In the most basic of concepts, this is a company is a partnership company with corporate elements blended in. This type gives little liability to the actual owners of the company. In reality it is also not an actual Corporation, rather it is an unincorporated association. While you are protected from most liabilities that arise, any fraudulent or misrepresentations are not protected as determined by a court of law. This also means any individual hiding behind an alter ego.
Most LLC can operate with the tax rules of either an S Corporation or a C Corporation depending on how the owner(s) prefer to have their income handled. Ideally handling it as an S Corporation provides the best solution for most individuals considering a LLC when it to taxes. So a benefit is the pass-through taxation available.
The liability on a LLC is a little stricter than those of the corporations as well. While personal property cannot be seized for failure of the business to pay, the limited liability is only from a financial stand point. The following items are your biggest concerns of liability. The company results in bodily harm of any individual. You personally guarantee a loan for the company. Taxes for employees are not paid that you have withheld. Any illegal or fraudulent activity. Using the LLC as an extension of your personal affairs.
This is the most simple of business structures. A sole proprietorship is an individual that is the business entity. This means there is no legal distinction between the individual and the company. Any profit or loss of the company is the tax responsibility of that individual, and they are responsible for all legal instances that arise as a result of their business.
A benefit to these types of business is they are very easy to start up. There are minimal regulations, and the owner has more of a say in how the company is run. However, it can be a financial burden for anyone attempting to run the company.
Most banks tend to shy away from loaning to sole proprietors, as they don’t tend to be as successful as major corporations. Since the owner has the financial backing for the company they are legally responsible for all financial loans associated with the business.
Limited Liability Partnership (LLP)
Simply put this is a partnership where each of the partners has a limited responsibility in the company. Depending on what State you are opening one of these companies will determine the maximum number of partners you may have.
None of the partners in a LLP are responsible for the actions of the other partners, thus liability remains on a single partner for their business. However, as a whole they must elect one individual who maintains unlimited liability for the Corporation as a whole. At the same time, each of the partners runs the business together as a whole.
All profits in a LLP are divided among the partners evenly, and they are responsible for income tax depending on the amount of income.
As a result of Limited Liability Partnerships in the United States, the Uniform Partnership Act was created to help govern the LLP as it moved across States.
Nevada is different from other States in several ways when it comes to a corporation. The legal system here offers you the ability to allow the board of directors to run your company while protecting you without piercing the corporate veil. There are numerous laws protecting businesses in Nevada that aren’t seen in other States.
No matter where in the country you operate, if you are incorporated in Nevada you are protected by Nevada laws if anyone attempts to pursue legal action against your company. Nevada’s law is very directly beneficial to the corporation, which has many safeguards in place to prevent costly unwarranted lawsuits to occur.
Outside of the $200 Business License Fee in Nevada you will not be charged franchise tax, corporate income tax or personal income tax by the State. This means outside of federal tax obligations you will have no additional tax liability.
However, crime especially theft is higher statistically in Nevada. As a result cases of employee theft and fraud are among the highest of anywhere else in the United States.
Forming a Corporation in Delaware is a wise decision. As over 60% of the major Fortune 500 were incorporated here, you can imagine the stable economic situation available. This is a place to thrive and build your company.
With that in mind the legal system is also setup to understand the Corporation laws more than any other state. This will provide fair and quick trials if anything goes before a judge in regards to your corporation. In fact, Delaware has created a Delaware Court of Chancery to handle all of these issues. They handle all the proceedings that occur as a result of business practices.
Another benefit, Delaware has many of the major credit card banks that relax on the interest rates provided here for corporations. You will of course have to use banks that are created under Delaware Law and not Federal Law to receive these benefits.
You also receive the internal affairs doctrine protection. If your business is created in Delaware you are protected by the laws of Delaware even as you expand across the country. Thus making any company especially a credit repair company even more protected in this State.
Best of all there is no income tax in Delaware. While you still have Federal Taxes, Delaware does not tax on income. So you end up with more profit from your income.
On the flip side of all this, Delaware does tax heavily on bank items. Interest on bank accounts and banking items are taxed higher here than anywhere else in the country. Another negative item is you are taxed heavily on any unclaimed services or property in regard to your business. This includes unused gift cards and other items.
If your company becomes a franchise, you are taxed a heavy franchise tax. This is to discourage existing corporations from trying to pull into the economy to catch a break.
With the information provided, you should be able to make a reasonable and sound decision on the best area to start your new business. Backed with information, both in the realms of pros and cons, you should be able to decide which business is right for you to begin. An attorney that specializes in business law will also be able to offer you fine tuned details on what route would be best for you as well. As all factors of a business have different items to consider.