Bankruptcy and Your Sole Proprietorship: 3 Things You Need to Know

Bankruptcy and Your Sole Proprietorship: 3 Things You Need to KnowBeing the sole proprietor of a business has many benefits, even if it does require a heavy workload. The possibility of bankruptcy, however, can be terrifying, especially when you’re on your own.

If you ever find yourself in a position where bankruptcy is your best option, it’s critical that you’re prepared. The following are three things you should know about sole proprietorship and bankruptcy and what it means for you and your business.

1. You and “the business” are not separate entities.

You may wonder if it’s possible to file bankruptcy for the company and not involve your own credit in the process. In short, the answer is no. Even though you have a license from the city for “doing business as” you do not get to sever yourself from your company entirely in times of bankruptcy. While corporations and LLCs are able to keep their personal accounts out of their business, as sole proprietor you are not. Make sure to check all of your finances and consult a bankruptcy attorney to see how your decision to file will affect you in both the short and long term.

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Business Basics: Business Entity

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. Business Entity Choice

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.

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Which Business Structure is Right For You?

Which Business Structure is Right For You?Before going ahead with that new business plan for your start-up, ensure you know all legalities involved, especially the different types of business structures available. The law surrounding each entity can differ from state to state (and country to country!) but generally the rules and regulations are quite similar. However, it is a good idea to seek legal advice beforehand so you are fully aware of the risks involved.  Below are some of the advantages and disadvantages of starting up a business as a corporation, limited liability company (LLC) or partnership.

Starting up as a… Corporation (equivalent to a limited company)

Setting up a corporation can be the preferred (and most beneficial) structure for employers looking to take on a large team of staff and have maximum legal protection. This type of business structure is owned by shareholders and has a board of directors.

Pros: A corporation is its own separate legal entity and is responsible for its own debt in insolvent situations, like administration or liquidation. This means, you, as a director, are protected if the corporation struggles financially.

It’s important to remember that the business owes money, not the director. If, however, directors have acted fraudulently, they will be exposed to the corporation’s liability.

Cons: There can be a lot of paperwork and filing of accounts when setting up a corporation, however this ensures everything is kept up to date and regulations as well as compliance are met. There are also higher tax fees which leads to more expensive accountancy fees.

Starting up as a… Limited Liability Company (LLC)

An LLC is a business structure that has more flexibility when it comes to taxes and regulations and is usually a good fit for small businesses. LLCs are owned by its members.

Pros: Like a corporation, you are protected against personal liability if the company enters insolvency. There is less paperwork to do as the structure is based around an informal agreement can be made when starting up and often adapted later on. An LLC can also choose how the business should be taxed

Cons: This type of entity is a fairly new structure and could be less favored than that of the ‘wise’ corporation structure. With perhaps an unfamiliar set up, investors may be more reluctant to lend.

Starting up as a… Partnership

As the name suggests, this business structure is set up with two or more partners and follows different common laws across the nation. However, there are some general rules that apply.

Pros: As structures get smaller in business size, so does the paperwork and filing of accounts. There are also fewer taxes to pay.

Cons: The big disadvantage of being in a partnership is you are personally liable for the partnership’s debt if the business falls in financial difficulty. Every partner is responsible for the entire debt, so if one partner is unable to afford the debt, creditors will look to the next partner and so on. Before going into this kind of business, drawing up a contract deeming who is liable for what is essential.

There is the option of setting up a Limited Liability Partnership (LLP). This type of formation can differ in law from state to state but is similar to a partnership. It does, however, offer more legal protection to partners if LLP becomes insolvent, hence limited liability. An LLP is essentially a cross between a partnership and a limited liability company.

Remember, you can change structures down the line if you want to. If you are unsure what the best plan of action is, be sure to get legal advice specific to your situation.

Keith Steven of KSA Group Ltd has been rescuing and turning around businesses for over 20 years and has worked with insolvency firms, turnaround funds and venture capital investors. He is also author of the site www.companyrescue.co.uk.  You can follow Keith on Google+.

50 States of Incorporation: Virginia

Virginia – the mother of all states. Home to the first English colony in the New World, and the birthplace of more U.S. presidents than any other state, the Commonwealth is easily one of the most storied and important states in America. Virginia continues to be one of the nation’s top producers of tobacco – a crop it has grown since the colonial era – and has one of the most diverse economies of any state. Ranching, farming, tourism, high-tech manufacturing, and government agencies contribute to the bustling and thriving Virginian economy. Incorporate in VirginiaAn educated workforce and pro-business government has also placed Virginia at the top of Forbes’ ‘Best States to do Business In’ list for the past four years. Virginia is an obvious choice for any budding entrepreneur. How do you start a business in the state? And what does it take to form an LLC or incorporate in Virginia?

How do you start a business in Virginia?
It’s actually quite easy! All you need is a ‘Doing Business As’ name, the right licenses and permits, and, if you want to hire someone, a federal tax ID number, often called an Employer Identification Number. Virginia has a handy tool to help new business owners register their business and its name online. Once you are all registered, you can technically open for business as a sole-proprietorship. However, while sole-proprietorships are easy to run, they make you, as the business owner, responsible for all of the business’s debts. If you hope to mitigate your risk, you should form an LLC or incorporate in Virginia.

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Business Basics: Governance Documents

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. governance documentsIt 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.

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50 States of Incorporation: Vermont

incorporate in VermontIt’s time to head on over to New England to the state that has the largest number of dairy cows (in ration of cows to people)! It’s no surprise that Vermont is so heavily cow-populated due to their small population size of fewer than nine thousand people. But many of those Vermonters are very successful entrepreneurs – especially when it comes to maple syrup! The biggest industry in The Green Mountain State is the selling and distributing of maple syrup. The state also boasts the prestige of being the original home to the headquarters for Ben and Jerry’s and IBM.

Vermont holds a lower rank on the Forbes best states for business list, with rankings in the twentysomething numbers for quality of life, economic climate, and labor supply. The state provides affordable healthcare, but suffers from high personal income taxes (9.5%) and corporate taxes (8.5%), according to CNNMoney.

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50 States of Incorporation: Utah

incorporate in UtahAs one of the states that comprises the Four Corners (along with Arizona, New Mexico, and Colorado), the advantages that come when one decides to incorporate in Utah are plentiful.

Nicknamed the Beehive State, Utah has been nationally ranked within the top three states in the country as the best states for business, according to Forbes. The state’s biggest industries include mining, cattle ranching, salt production, government services, and tourism, the latter of which notably rose after the end of the 2002 Winter Olympics. Major companies including Overstock.com, 1-800 Contacts, Ancestry.com are all headquartered within the state as well and Thumbtack.com gave Utah an A+ in the overall friendliness and ease of starting up a business that Utah provides.

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What Goes into an Operating Agreement?

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. operating agreement 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.

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50 States of Incorporation: Texas

This week we are looking at Texas – the Lone Star State. As the saying goes, everything is bigger in Texas. The state has successfully accommodated changes in the economy and US consumption – though it was originally a cattle state, oil rich land and a strong infrastructure has turned the cowboy state into one of the economically diverse states in the USA. Incorporate in TexasIn their Best States for Business survey, Forbes ranked Texas at #7 with the state’s economic climate in first place and most analysts also expect Texas to see some serious growth in the next few years. If you’ve ever wanted to start a business, Texas is a great place to do it. But how hard is it to start a business, form an LLC, or incorporate in Texas?

What do you need to start a business in Texas?

Surprisingly little! Some states require sole proprietorships, which are the simplest type of business entity, to register before they do business. All Texas requires is that the sole-proprietorship’s owner file an ‘Assumed Name Certificate,’ also known as a ‘Doing Business As’ name, with the County Clerk. Depending on where you plan on doing business, and what sort of business you run, you may also need to file for a business license – the Small Business Administration has a handy tool to help new business owners figure out exactly what they need on that front!

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What is a Foreign Corporation?

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,’ Foreign Corporation 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.

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