Archive for the ‘Entity Formation’ Category

To C Or Not To C, That Is The Question

Tuesday, November 9th, 2010

Robert Flach announced his newsletter, The Schedule C Letter. Robert notes,

THE SCHEDULE C LETTER is a bi-weekly newsletter that provides tax planning and preparation advice, information, and resources for sole proprietors and one-person LLCs who report their business activity on IRS Schedule C

The newsletter, which will be sent via US mail, costs $24.95 for 6 issues. The newsletter will begin publishing in January 2011.

Peter Pappas doesn’t like Schedule C businesses. His view, which I share to some degree, is that any business worth having should be either incorporated or in an LLC that does not file a Schedule C. The primary reason for his view is, I believe, that a Schedule C business has ten times the risk of audit of a non-Schedule C business (all other factors being equal).

Well, I agree to a point. Unfortunately, I deal with one group of individuals who cannot incorporate (or form an LLC) in all jurisdictions. Many states disallow professional gamblers from incorporating because gambling is against public policy (even though it’s legal in that state). My guess is that Mr. Pappas would say that those clients are the exception that proves his rule.

Well, who is right? Mr. Pappas is absolutely correct about the risk of audit. Additionally, for a business that is grossing $100,000 or more, and especially any business of any size with any liability exposure, a business structure (LLC or corporation) is nearly mandatory. Yet what if you are a single member LLC, and you do not want to be taxed as a corporation? You’re going to file a Schedule C.

Perhaps it’s just two individuals looking at an issue from their perspectives. That said, businesses of significant size should definitely look at not filing a Schedule C. And if you do file a Schedule C you should definitely look at Mr. Flach’s publication because making mistakes on your return will cost you time and money.

Ask Your Attorney and Accountant and Then Act

Wednesday, June 18th, 2008

Joe Kristan has an excellent post this morning on why your first should talk to your business attorney and accountant and then act on a change to your business entity. If you act first you may very well end up having tax troubles.

What Kind of Business Entity is Right For You (Part 1)

Friday, January 19th, 2007

You’ve decided to go into business for yourself! Congratulations. If you’re like most new entrepreneurs, you start your business first, and ask questions later. If you do that, I can guarantee that unless you’re incredibly lucky, you’ll have a bunch of headaches down the road.

In this series I’m going to look at the various types of business entities: sole proprietorships, partnerships, C Corporations, S Corporations, LLCs, and other business entities. Many tax preparers and attorneys believe that “one size [entity] fits all.” That’s just not the case. What may be right for you might not be right for me.

It’s important that before you start your business, you meet with an attorney and a tax professional. There are three different individuals who need to come together to determine which business entity is right for you: the attorney, a tax professional, and you. It’s like an Isosceles triangle, and somewhere in the middle is the right entity.

Your goals are extremely important. What do you want from the business? Some entrepreneurs want to be the next Microsoft; others just want a nice, steady income. Do you want health insurance payments to be made from your business? How many (if any) employees do you want/need? Is your business local, regional, or national? Do you want to franchise it? What kind of income do you need from it to live off of? These are just a sampling of the questions that I ask new business owners.

The attorney is needed because liability questions can mandate different types of entities. Does your business have significant product liability risks, such as food, small toys (they can be swallowed by small children), pharmaceuticals, etc.? Do you have backers (investors) who want a specific agreement/entity? Does your business location present legal risks? Do you have partners/investors, such that a buy/sell agreement needs to be drafted? There are many other legal issues when you form a business. A business attorney familiar with your business idea(s), and the community you will be operating in, is a must.

A tax professional is also a must. Depending on your goals, and the legal issues involved with your business, the tax professional can recommend a business entity. The attorney will also likely recommend a type of entity. Usually, these recommendations sync.

There can be major issues when you rush into your business. I have a new client in San Diego. She formed her business in 2005 as a sole proprietorship. There are just a few problems, though: she has a silent partner, entitled to 50% of the income that’s not on the books; this partner is in Hong Kong, so there are foreign withholding requirements; the company has significant liability exposure (it’s in the food industry); she formed an LLC and an S Corporation, but she’s operating her business in the name of the sole proprietorship; and she first saw an attorney (at my urging) in late 2006. In other words, it’s a mess, and will take time (and money) to straighten out. It’s much, much easier to spend a little bit of money up front then have to spend a lot on the back end.

In part two (coming next week) I’ll take a look at the advantages and disadvantages of a sole proprietorship. Sole proprietorships are the easiest businesses to start. But ease comes with a price.

LLCs vs. S Corps in California

Monday, January 23rd, 2006

In my practice, I see a lot of S Corporations, but very few LLCs (I can count the number on one hand). Yet, according to Christopher Hoyt of the University of Missouri at Kansas City (writing in the TaxProf Blog), this is the opposite of what’s being recommended in law school. So why the difference?

Hoyt notes the statistics, and presents a graph showing that S Corps remain twice as popular as LLCs (based on new S’s vs. new LLCs). Joe Kristan of Roth Tax Updates then speculates on the reasons behind this. His points on salaries, and the uncertainty of how LLCs are to be treated for self-employment taxes are on point.

Kristan also notes that state issues have a material impact. He notes that in Iowa (his home state), LLCs are tax-disfavored (versus S Corps) for multi-state operations.

In California, there are two major factors working against LLCs. First, all S Corps and LLCs in California must pay a minimum state franchise (income) tax of $800 per year (or 1.5% of net income, whichever is greater). But LLCs also face a gross receipts tax, so LLCs in California are triple-taxed! The current minimum gross receipts tax (called an LLC fee) is $865 per year. Second, some businesses are prohibited from being in an LLC. These include professionals, such as architects and accountants. (They can form LLPs, though).

If you’re at all interested in forming an LLC read the articles. They’ll enlighten you about some of the tax issues facing LLCs.

Hat Tip: TaxProf Blog & Roth Tax Updates

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