ABCs of Small Business Incorporation
By: James Pruitt, Senior Staff Writer
Types of Incorporation
Small businesses may incorporate as corporations or LLCs as well as partnerships. The first two formats shield owners personally from various liabilities. Hence, in case of debts or lawsuits, the owner’s personal assets remain behind the “corporate veil,” generally not reachable by creditors.
Limited liability companies (LLCs) offer the tax advantages and flexibility available to partnerships. Corporations differ from LLCs in the issuance of stock. Also, corporations issue by-laws that govern their management and govern the interactions of shareholders, directors, and officers.
Relationships with their home state govern corporations. Contract (and agency) law governs partnerships. Choosing between these methods of small business formation is the first step in availing yourself of the benefits of formal recognition.
Reasons to Incorporate
Benefits of small business incorporation include (1) name protection; (2) tax flexibility; (3) perpetual existence; (4) personal asset protection; (5) deductible expenses; (6) nationwide availability; (7) and not least importantly, additional credibility.
First, as for name protection, incorporation provides exclusive access to your business name. Second, tax flexibility grants the legal advantages of the most fitting taxation scheme. Third, the small business will exist perpetually and assume an identity independent from the owners. Fourth, the assets of the business will belong to the business itself rather than the owners. Fifth, incorporation allows a process for deducting business expenses before allocating income to the owners of the business. Sixth, the business will go on the records nationwide in all jurisdictions under the relevant name. Seventh, the plain fact of credibility offers opportunities for expansion.
Where to Incorporate
Incorporated businesses must file annual reports in any state where they register or do business.
Owners usually incorporate in their home state. While large corporations sometimes avail themselves of outside states (most commonly Delaware), for a small business, incorporating locally saves time and effort.
Taxation
Different corporate tax entities can include C corporations and S corporations, in addition to LLCs and partnerships. ”C corporations” file the IRS form 1120. “S corporations” qualify for “pass through” taxation, which taxes the owners themselves for the profits of the corporation without involving corporate income tax. In other words, “S corporations” escape the double tax liability typical of “C corporations.” “S corporations” cannot have more than 100 shareholders. An accountant or lawyer can advise the best options.
LLCs, or limited liability companies, are also subject to the same type of “pass-through” taxation. The distinction between the three types of tax entities lies in the nature of the ownership of the company, with “C corporations” generally issuing shares to large numbers of owners.
How to Incorporate
Next, choose a business structure. Options include C-class corporations, S-class corporations, or LLCs. The best option really depends on the size and ownership of the organization. Smaller organizations with limited ownership may better fit with an S-type or LLC structure. Partnerships depend on contract law, hence agreements between business owners rather than with the state.
Articles of Incorporation
C or S type corporations should have Articles of Incorporation, filed with the local Department of State. These articles determine the scope of the company and the structure of the ownership. Such a company could have a Board of Directors. Such corporations may issue public or private stock to foster growth.
Small business owners who choose the C or S corporation route should not confuse articles of incorporation with bylaws, which are rules governing the day-to-day running of the company. Both articles of incorporation and bylaws are generally filed with the relevant office of the Secretary of State.
Should a small business owner choose to incorporate as a partnership, they need not file documents with the state. An LLC, on the other hand, should file “articles of organization.”
After Incorporation
Employers generally apply separately for an employer identification number, for employee entitlements such as unemployment. Next, one should obtain any necessary business licenses and permits. Finally, after the actual incorporation, the owners of a new business should draft bylaws and operating agreements to govern the day-to-day functioning and scope of business operations,
Incorporation v. Partnership
Legally, state governments control the status of corporations. Contract law between business owners governs partnerships. A limited liability corporation (LLC) may opt to file the paperwork for treatment as a separate entity from the owners. Hence, the owners may protect their assets in debt collection. In conclusion, the best choice between a C or S corporation, partnership, or LLC depends on a variety of factors, including the number of owners, their status, the relationships of each owner, and plans for the future and scope of the company.
VAMBOA, the Veterans and Military Business Owners Association is pleased to announce that James Pruitt will be contributing articles to our blog as a Senior Staff Writer. James Pruitt is an independent copywriter and editor specializing in legal and health-related issues. He received his master’s from the University of Chicago and his bachelor’s from UC Berkeley. He currently resides in Thousand Oaks, where he pursues his passions in gardening, cooking, and spoiling his mixed Maine Coon cat, Russell.
