If there is one thing we’ve learned from over a decade and a half of helping small business owners, it’s that every business is different. For new small business owners, it’s important that you choose the business entity that will suit your unique needs. There are four basic entities that you can choose from, each with its own advantages and disadvantages. While there is no “right” choice, depending on what you sell, where you plan to take your company, and how ownership of the company is divided, there will be certain entities that will fit your business model better than others.
Sole Proprietorships and Partnerships
Sole proprietorships and partnerships are the simplest type of business entity. They are also the default option. It doesn’t take much to start a sole proprietorship or a partnership either. Just file for a ‘Doing Business As’ name, apply for the right licenses and permits, and open your doors. If the business is run by two or more people, you will also need an Employer Identification Number (EIN) and you’ll have to file another form come tax time. But this simplicity comes at a price. Everything the business owes and owns is tied to your personal assets. In other words, you, and your partner if you have one, will be held liable for the business’s debts if it fails. Also, if you do have a partner, you may not be protected if they decide to walk away from the business. So, while running a sole proprietorship or partnership is a lot simpler, it does put an undue amount of risk on the owner(s). To limit your liability, consider forming a corporation or limited liability company.
One of the most common questions we get here at MyCorporation about forming a limited liability company or corporation is, “How hard is it to actually run this type of business?” Running an LLC or corporation is very different than running a sole proprietorship, and the government will expect those running the business to adhere to certain rules. It should be noted that the only governance document need for Corporations and LLCs is an Articles of Incorporation or a Certificate of Organization. However, there are other types of governance documents that should be kept and maintained.
Articles of Incorporation and Certificates of Organization
In order to form a corporation, you have to file your articles of incorporation. And in order to form an LLC, you have to file what is normally called a certificate of organization. In both cases, these documents act a sort of birth certificate for the new business entity. They disclose the entity’s name, address, registered agent information, and the information of any managers or owners. A lot of states actually offer a “fill-in-the-blank” type of form on the website of their Secretary of State or department of corporations. However, these forms only meet the minimal requirements for a corporation or LLC as set by the state. They also don’t set the rules for how your company will actually be run. Along with these formation documents, you should consider drafting a set of bylaws or an operating agreement.
Entrepreneurs are always going to be protective of their business’s name. After all, this is the name under which all of the goodwill and branding they’ve worked so hard to accrue will go. But there is still some confusion about the best way to protect that name. On the one hand, registering a ‘Doing Business As’ name does keep other businesses in your area from using the same name, and for some businesses that’s enough. While a trademark on your business’s name offers a lot more protection, filing a trademark does take more time and money. So we decided to take a look at both DBA names and trademarks, and help explain what the pros and cons of each are.
Doing Business As Names
A DBA name, which is also referred to as a trade name, is just that – a name. It’s a quick and easy way to identify a business or entity, and filing for a DBA name is pretty straightforward. Continue reading
Operating agreements are one of the most vital, and overlooked, tools in running a limited liability company. We’ve actually covered operating agreements as part of our ‘ABCs of MyCorp’ series, but we never delved into what an operating agreement should actually say. As a quick refresher, an operating agreement is essentially a document that defines how the LLC will be run, and the SBA recommends that every LLC draft one. The trouble is that only a couple of states, like Missouri and New York, legally require new LLCs to have an operating agreement. But without the rules, structure, and regulations an operating agreement provides, your LLC could be in serious trouble if partners disagree, a member wants to leave, or if the state starts questioning the validity of your LLC. Operating agreements are also pretty easy to draft and only need to cover a few key areas.
The term ‘Foreign Corporation‘ sometimes confuses people. Though it can also refer to a corporation from a different country, when business advisers refer to a Foreign Corporation or LLC, they are usually talking about a domestic company with permission to operate in a state other than the one the company was formed in. This permission is often called a ‘foreign qualification,’ and it effectively registers your company with the new state so the state can collect taxes. With it, you can open up another branch of your company, or move your base of operations, without changing states. But why would a business want to do that?
Why would you want a foreign qualification?
There are a few reasons why a business chooses to qualify as a foreign entity in other states. One of the main ones being that the company simply wants to expand its operations – sales could be strong in their home state, and they figure they’ll take a crack at opening another store or office in a neighboring state. Since you need permission to do business in another state, they pursue a foreign qualification. However, some business owners also believe that they may save money on taxes by forming a business in a state like Nevada or Delaware, and then qualifying in the state they actually do business in. There are pros and cons to incorporating in another state, so be sure to weigh your options carefully.
This week we thought it’d be a good idea to look at one of the most important parts of a product’s branding, its trade dress. You are affected by trade dress every single day, whether you realize it or not. If we describe a white coffee cup with a green circle on it, you’ll know it’s from Starbucks. Or if we show you a bag with a red square and yellow arches, you’ll think McDonalds. Essentially, trade dress is the various characteristics that make up a product’s or package’s appearance. But how do you protect your own trade dress? And does building a brand mean marrying that packaging?
We bet you still know what company this is.
Why should you build trade dress recognition?
Because your company needs a way to immediately distinguish itself. Your brand embodies all of the goodwill and trust you’ve built into your company, and something as simple as a color, font, or even the shape of your product’s box can evoke all of those feelings within whatever customer is looking at your product. That’s why you want your trade dress to be consistent over all of your properties. Your logo, signage, site, and product packaging should all be built around some common element that inextricably ties your business with your product or service.
Traditionally, Limited Liability Companies are treated like partnerships. Two or more people get together, found a company, form an LLC, and then start running the business. But there’s more than one way to run an LLC. Member-Managed and Manager-Managed Limited Liability Companies are run very similarly, but there are also some key differences that anyone looking to form an LLC should know.
Member-Managed LLCs are, by far, the more common choice. Each member of the limited liability company is treated as equal to every other member, and everyone shares responsibility for the day-to-day operation of the LLC. Continue reading
Limited Liability Companies were, originally, meant to be a replacement for the standard partnership. In 1977, the IRS ruled that it would treat the very first LLC, a Wyoming-based oil company, as a partnership for tax purposes. That meant any money earned by the company would flow through it, directly to the members of the LLC. It wasn’t until 1988, however, that the IRS chose to recognize all LLCs as partnerships, rather than corporations. LLCs are thus, at the federal level, treated as partnerships, which complicates matters for Single Member LLCs. Single Member Limited Liability Companies thus face challenges unique to its business structure – challenges that anyone considering forming a SMLLC should know about and expect.
What are the differences between a Limited Liability Company and a Single Member LLC?
The main difference is right in the name. A single member LLC only has one member, or owner. Limited Liability Companies were primarily created to protect the interests of everyone involved in running the company. The assets and debts of the company were its own, and the assets and debts of each member was their own. If one member misbehaved and owed creditors money, the creditor could not seize control of the LLC – they could only collect on the proportional share being paid to that owner. Likewise, if the company went bankrupt, the personal assets of the members were safe. Single Member LLCs, on the other hand, are not partnerships and it has been up to the state courts to decide how much protection a single-member LLC should really provide.
A Limited Liability Partnership is a very interesting type of business structure. Limited Liability Companies already combine the ease of running a partnership with the protection of a corporation, and the IRS originally ruled that LLCs would be taxed as partnerships. So what is the difference between a Limited Liability Partnership and a Limited Liability Company? And which one would be the best structure for your company?
What is a Limited Liability Partnership (LLP)?
We’ll answer the easiest question first. An LLP is very similar to an LLC – both protect the company’s owners from lawsuits and debtors, and both have a pass-through tax structure, meaning anything the company earns passes through it, directly to the owners, without being subject to any corporate income tax. However, a Limited Liability Partnership offers an extra bit of liability protection to each partner. So, just like in a Professional Corporation, the other partners in an LLP will not necessarily be liable for the consequences stemming from another partner’s actions.
Do all states recognize LLPs?
Yes, though the laws recognizing LLPs vary from state to state. The majority of the states have adopted the Revised Uniform Partnership Act, which includes a provision for LLPs stating ‘An obligation of a partnership incurred while the partnership is a limited liability partnership, whether arising in contract, tort, or otherwise, is solely the obligation of the partnership.’ In layman’s terms, that essentially means that the company, and not the individual partners, is responsible for any obligations stemming from contracts or torts. The states that haven’t adopted the RUPA instead opted for their own laws to recognize LLPs, but all follow the same basic pattern.
Corporate seals are a remnant of the middle ages, back when official documents were legitimized by a hot wax imprint of a seal or crest. The practice of ‘sealing’ documents kept on throughout the centuries, though the hot-wax method eventually gave way to rubber stamps and paper seals. Today, corporate law still allows for the use of corporate seals, though they are no longer as important as they once were. This week in business basics we answer a few of the most commonly questions we receive about corporate seals, and let you know if you should get one for your own corporation.
What is a corporate seal?
A corporate seal is essentially a signature for your business. When you incorporate, you turn your business into its own, legal entity. Since a corporation cannot sign anything, a corporate seal is used to mark legal and official documentation. These days, most corporate seals are either rubber stamps or steel embossers, and are normally designed to fall apart if tampered with to help avoid fraud.
Do I need a corporate seal?