Entity Choice & Formation
Entrepreneurs & Small Business Owners:
Choosing Your Business Structure
Limit Your Personal Liability When Forming a Business
Choosing the proper legal entity for your business is one of the most important initial decisions. As an owner, your personal liability, legal rights and obligations and tax responsibilities are affected by the business entity you select. Making an informed choice at the outset can impact the long-term success of your business.
Yet, understanding the differences between entity types can be confusing and time consuming. You may find that two or more formation options seem to equally satisfy your needs. Making the final choice in haste, based on price, or on what seems most common in the marketplace is not advisable.
Business formation options include establishing a:
- Sole proprietorship
A sole proprietorship is not a separate legal entity and, therefore, offers no liability protection to its owner. It is owned and operated by one person. No documents need to be filed with any government entity. The owner may elect to file a fictitious name or “DBA” certificate if it is doing business under a name other than itself. A DBA, however, is not required.
- General Partnership
A General Partnership is an association of two or more individuals, or entities, engaged in business for profit. Partners are jointly and severally liable for all debts or liabilities of the partnership and for all wrongful acts of any co-partner acting in the ordinary course of partnership business. As a result, partnerships may not be the optimal choice for startups looking to fundraise. Investors do not want to be subject to unlimited liability as a member of a General Partnership and prefer to invest in entities that limit personal liability.
- Limited liability company (LLC)
LLCs are formed at the state level. In New York, a business entity search online on the Department of State’s website will reveal whether your intended business name is already in use. LLCs (and Corporations) can be organized online. After organizing, the founder(s) must satisfy the statutory publication requirement. This involves publishing a summary of your business’ Articles of Organization or Qualification in two newspapers for six consecutive weeks. Use of a registered agent for service and publication in Albany County can save you hundreds if not a thousand dollars or more on fees.
LLCs are not corporations. They do not involve many of the formalities that are required when managing a corporation. For example, LLCs do not issue stock, are not required to hold annual board meetings, or keep written minutes of those meetings. Moreover, the LLC can be converted into a Corporation upon election. From a tax perspective, LLC Members (i.e. the owners) can elect to be taxed as a Partnership or as a Corporation. In a single member LLC, the founder can elect to be taxed as an individual or a Corporation.
- Limited liability partnership
In a Limited Partnership, there are both General Partners and Limited Partners. The General Partner’s liability is unlimited, as in the General Partnership, however, the Limited Partner’s liability is limited to the amount of his or her investment. Thus, the Limited Partnership is a preferred vehicle for raising capital as investors can become Limited Partners, not subject to the liability of those controlling the business. Limited Partners may not participate in the control of the company.
Similarly to LLCs, Corporations are formed at the state level. Again, a business entity search online on the Department of State’s website will reveal whether your intended business name is already in use. Recall the LLC publication requirement? Corporations are not subject to the publication requirement under New York law.
After formation, a corporation may elect to be treated as a “small business” or “S” corporation, under §1362 of the Internal Revenue Code. This election will allow the shareholder.
The filing of the Certificate of Incorporation with the Department of State is the birth of the Corporation. An organization meeting of the incorporator or incorporators must be held for the purpose of adopting by-laws, electing directors and transacting any other business thereafter. Correct and complete books and records of account and minutes of the proceedings of the shareholders, board, and executive committee, if any, must be maintained. The corporation must also keep a record containing the names and addresses of all shareholders, the number and class of shares held by each and the dates when they respectively became the owners of record thereof. It is recommended that a qualified attorney oversee the management of your corporate documents. Of course, it is also imperative that any new business seek the advice of an accountant or tax professional prior to making important business decisions, including entity formation.
Preparing for the Future from the Beginning
In forming a business entity, the Paleudis Law Firm, LLC, will consult with the founders to draft a business’s governing documents and critical agreements, including:
- Buy-Sell Agreements
- Corporate By-Laws
- Employee Handbooks
- Articles of Organization
- Operating Agreements for LLCs
- Partnership Agreements
- Shareholder Agreements for Corporations
- Voting Trusts
For more information on choosing the entity that fits your business plan, please schedule an initial consultation through our Online Contact Form, by email: firstname.lastname@example.org, or by phone: (212) 835-6768, (215) 331-6487 or (609) 480-3080.