What Type of Business Organization Should You Establish and Where?
Most new businesses should incorporate their business in the state in which the business is conducted. If you live and work in California, for example, you would incorporate your business in California. If your business conducts business throughout the United States, you should incorporate in the state where your headquarters will be. If you have a substantial business presence in another state, you may need to let that state know and file state tax returns or sales tax returns based on your business earnings in that other state, by registering as a foreign corporation.
Businesses with substantial nationwide activity sometimes choose to be incorporated in Delaware or Nevada because of the business-friendly laws in those states. Even if you incorporate in Delaware or Nevada, you will still need to register your business as a foreign corporation in those states where you have an actual business location and where you conduct business.
Limited Liability Company (LLC)
The various forms of organization are established by state law. There are a wide variety of business organizations recognized by the states. For example, a popular form of organization is the Limited Liability Company (LLC). The LLC is a state designation. At the federal level, an LLC is taxed as a partnership. If the LLC so chooses, it can be taxed as a corporation at the federal level. While there are a variety of designations at the state level, for federal tax purposes there are only 6 forms of business organizations:
- Sole Proprietor (1040 Schedule C),
- Corporation (1120),
- Partnership (1065),
- S-Corporation (1120S),
- Trust (1041),
- Non-profit organization (990)
Sole Propietors are unincorporated businesses. They are also called independent contractors, consultants, or freelancers. There are no forms you need to fill out to start this type of business. The only thing you need to do is report your business income and expenses on your Form 1040 Schedule C. This is the easiest form of business to set up, and the easiest to dissolve. (An LLC with only a single shareholder, a so-called single-member LLC, is taxed as a sole proprietor on a Schedule C.) If you will not be conducting business in your own name, then must file a ficticious name form with the county and have it published before you can conduct business in the name. The fictious name form will be required by a bank in order to open a bank account in the name of the new business and obtain credit cards, and to use a credit card processing service.
Corporations are incorporated businesses. Every form of business aside from the sole proprietor is considered a separate entity. This often provides a measure of legal and financial protection for the shareholders. The shareholders of corporations have limited liability protection, and corporations have full discretion over the amount of profits they can distribute or retain. Corporations are presumed to be for-profit entities, and as such they can have an unlimited number of years with losses. Corporations must have at least one shareholder.
Partnerships are unincorporated businesses. Like corporations, partnerships are separate entities from the shareholders. Unlike corporations, partnerships must have at least one General Partner who assumes unlimited liability for the business. Partnerships must have at least two shareholders. Partnerships distribute all profits and losses to their shareholders without regard for any profits retained by the business for cash flow purposes. (LLCs are taxed as partnerships, unless they choose to be taxed as corporations.)
S- Corporations have features similar to a partnership. An S-corporation must have at least one shareholder, and cannot have more than 100 shareholders. If any shareholder provides services to the business, the S-Corp must pay that shareholder a reasonable salary. This salary is a separate payment from distributions of profits or losses.
A Professional Corporation (APC)
Requires it’s owners to hold professional license such as an attorney or doctor. They cannot partner with those who do not also hold a professional license.
Trusts are usually formed invivos (during the life of a person) or testamentary (upon the death of a person) and are designed to provide continuity of the investments and business activities of the deceased individual. This would include business succession. A revocable living trust is created for the distribution of assets and many of these assets can be held in trust and distributed at a later time. Most Trust must be distributed within a period of twenty years after the death of the Trustor.
Nonprofits are corporations formed for a charitable, civic, or artistic purpose. Nonprofits are generally exempt from federal and state taxation on their income, and so they are often called “exempt organizations.” This is only if they have the coveted 503-C designation. Nonprofits have substantial responsibilities for reporting their activities, income, and assets to ensure that they are in compliance with federal and state laws governing charities.