Just the Basics

Which business entity do I choose?

Your business has been doing so well you are amazed. For the last couple of years it has continued to grow despite the severe recession. You’re rather proud of the fact that you ran it on a shoestring budget too, and kept just enough employees to do marketing and fill orders. Now that business is beginning to show a profit and you can actually take money out of it instead of plowing it back into the venture, you are beginning to worry about the fact you’ve been doing business under a fictitious business name. It’s time to make a call to a business attorney and find out how personally exposed you are and what you may do to protect yourself from business liabilities.

The first thing you find out is that you have been running the business as a sole proprietor despite having registered a fictitious business name. What that means is you have personal liability for all the obligations and other liabilities of the firm. It gets worse yet. The debts you’ve shouldered are business rather than personal or consumer debts. Your lawyer explains many of the protections you enjoy from consumer debts like credit cards or installment purchases don’t apply when you incur the debt in connection with operating your business.

Not without some trepidation, you ask the attorney if there is anything you can do to change the situation because you don’t want to start all over since you have a success on your hands. Fortunately for you the answer is there are a number of options that will let you change your company from a sole proprietorship to a business vehicle like a corporation or limited liability company. If this is done correctly, you can change the form of doing business tax free as well.

The attorney explains incorporating a going business or organizing it into a limited liability company is permitted in California and if properly done, neither the IRS nor the California Franchise Tax Board will see it as a sale from you to the business. Specifically, you may be able to contribute the assets of your business to the limited liability company in exchange for your membership interest without it being viewed as a taxable sale between you and your limited liability company.

What do you choose? You find out that corporations are an older form of business entity with less flexibility of operation over the limited liability company, the more modern form of business entity. On the other hand, when you do business in California in a limited liability form, it may be subject to a gross receipt tax which can be significant for a small business – if gross income attributable to California is more than $250,000, the fee will be imposed from a low of $900 to $11,790 if the total gross income exceeds $5,000,000.

Both entities are in common enough use that for most small businesses, institutional lenders are available to provide financing. For many tax professionals, the potential gross receipts tax is reason enough to opt for the use of a corporation which elects to Sub-Chapter S status. The advantage of an S election is that it avoids taxation at the corporate level, permitting items of income and loss to flow through directly to you, the shareholder. What is most important about either form of doing business is that it affords protection against personal liability.

Your lawyer says that as a practical matter, many lenders and landlords require personal guaranties by the shareholders or members of small business corporations or limited liability companies. Finally, in order to transfer the business into the selected business entity, your lawyer will work through each of your business assets and liabilities transferring title from you personally to the new entity.

Some of your liabilities, such as bank loans, may not be so easily converted into company obligations, at least without an accompanying personal guaranty. The good news is that once completed and all customers, vendors and other creditors are given notice of the change, future obligations or liabilities should belong to the company and will not be yours. Unfortunately, you learn that the legal and accounting costs are significantly more when incorporating a going business, or contributing the assets of a going business to a new limited liability company.

It is easy to see that our friend would have been better served had he spent a little more in the beginning to save significant legal and accounting outlays later, not to mention the time he may have to devote to gathering critical business information so that the process can be completed……at least that is what this lawyer thinks.

Roni Balint writes for the Law Office of Alan M. Insul. The content contained within this feature is not intended as legal advice and does not constitute an attorney-client relationship. To learn more, contact Los Angeles business attorney and California corporate lawyer, Alan M. Insul by visiting Insullaw.com.

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