Business Entity

Business Entity Selection: What You Should Know

Selecting an appropriate business entity is a crucial decision for new business owners in Illinois, and it requires a thoughtful consideration of several key factors. Firstly, it’s important to consider the level of liability protection required. Sole proprietorships and partnerships involve a high level of personal risk as the owners are personally liable for all business debts and liabilities. Limited Liability Companies (LLCs) and corporations, on the other hand, offer liability protection, which safeguards owners’ personal assets from business debts and liabilities.

The second factor to consider is the taxation structure. In a sole proprietorship or partnership or S Corp, the business’s profits are passed through to the owners’ individual tax returns, and are taxed at their personal income tax rates. This is known as pass-through taxation. Corporations taxed as a C Corp, however, are subjected to double taxation where the corporation pays corporate income tax on its profits, and then shareholders also pay personal income tax on any dividends received. LLCs can offer the best of both worlds by providing the liability protection of a corporation with the pass-through taxation benefits of a partnership.  It should also be noted that LLC’s may elect to be taxed as C Corporations.

The third factor to consider is the desired level of formality and administrative complexity. Corporations require a high level of formality, including holding regular board and shareholder meetings, maintaining corporate minutes, and complying with other state-mandated formalities. On the other hand, LLCs and sole proprietorships require less formality and are easier to maintain.

Investment needs and plans for raising capital should also be considered. Corporations are sometimes more appealing to investors because they can issue stock and are more familiar structures.  However, LLC’s may also be structured in way that is attractive to investors, including the ability to issue membership units, which are synonymous to shares of stock. If you anticipate needing to raise a significant amount of capital, particularly from venture capitalists, then a corporation or LLC might be the best choice.

Lastly, consider the longevity and succession plans for your business. Corporations and LLCs have a perpetual existence, meaning the business can continue even if the owner leaves or passes away. This is not the case with sole proprietorships and partnerships, which typically dissolve upon the owner’s death or departure.  It should also be noted that LLC’s may elect to be treated as term companies, meaning the LLC will terminate on a specified date or completion of a specified event.

In summary, when selecting a business entity, new business owners should carefully consider liability protection, taxation, administrative requirements, investment needs, and longevity and succession plans.

Limited Liability Company vs. Partnership

Limited Liability Companies (LLCs) and Partnerships each come with their unique legal and tax advantages and disadvantages that can greatly impact the operation and success of a business.

Starting with LLCs, one significant legal advantage is the limited liability protection provided to its members, which safeguards their personal assets from business debts and liabilities. This is not typically the case with general partnerships where partners are personally liable for business debts and obligations. However, it’s important to maintain the separation between personal and business finances to preserve this protection. An LLC also allows for flexible management structures. Unlike corporations, which require a board of directors and adherence to strict formalities, LLCs can be managed directly by their members, offering a more flexible approach.

On the tax front, LLCs typically benefit from pass-through taxation, similar to partnerships. This means that business profits are only taxed once on each member’s personal income tax return. This avoids the double taxation issue seen in C Corporations. However, depending on the state, LLCs may be subjected to additional fees or franchise taxes that partnerships do not have.

Partnerships, either General or Limited, also have their benefits and drawbacks. A key advantage of partnerships is the ease of formation. They are often simpler to set up and have fewer state-imposed formalities compared to LLCs. Additionally, the pass-through taxation is an attractive feature, with profits and losses flowing directly to partners’ individual tax returns, avoiding corporate taxes.

However, one significant legal disadvantage of a General Partnership is the unlimited liability faced by partners for the business’s obligations. If a lawsuit were filed against the business, partners’ personal assets could be at risk. Limited Partnerships can mitigate this risk somewhat by having limited partners who are only liable up to the amount they have invested into the business, but this requires at least one general partner to assume unlimited liability.

In summary, while both LLCs and Partnerships offer advantages such as pass-through taxation and less formality than corporations, there are significant differences. LLCs provide limited liability protection and flexible management, but may come with extra fees. Partnerships are easier to form, but General Partnerships expose partners to potentially significant personal liability. Therefore, business owners must carefully weigh these factors in light of their specific circumstances when choosing a business structure.

Limited Liability Company vs. Corporation

Limited Liability Companies (LLCs) and Corporations are two distinct business structures, each with their own unique legal and tax advantages and disadvantages, that can significantly influence a business’s operations.

From a legal perspective, both LLCs and Corporations provide limited liability protection to their owners, which safeguards personal assets from business debts and liabilities. However, where Corporations require a structured management and administrative setup, including a board of directors, regular shareholder meetings, and compliance with various state-imposed formalities, LLCs offer more flexibility. LLCs can be member-managed, thus avoiding some of the administrative complexities associated with running a Corporation.

When it comes to taxation, an LLC typically offers more flexibility than a Corporation. By default, an LLC is treated as a pass-through entity for tax purposes, meaning profits and losses are reported on the personal tax returns of the members, thereby avoiding the issue of double taxation faced by Corporations. However, LLCs can elect to be taxed as an S Corporation or C Corporation if that better suits their circumstances. In contrast, a Corporation is taxed at the corporate level, and then shareholders are also taxed on any dividends received, creating a double taxation scenario.

An S Corporation, a subset of the Corporation category, can bypass this double taxation through a similar pass-through taxation mechanism as an LLC, but it comes with more restrictions, including a limit on the number of shareholders and restrictions on who can be a shareholder.

In summary, LLCs offer significant advantages in terms of legal flexibility and tax versatility compared to Corporations. Conversely, Corporations, while providing robust mechanisms in connection with the internal operations of the business, come with a higher administrative burden and double taxation. Therefore, when choosing a business structure, it is vital for business owners to consider their long-term goals, financing needs, tax implications, and administrative capacity.

S Corporation vs. C Corporation

The most prominent differences between S Corporations and C Corporations lie in their taxation structures. S Corporations are designed to avoid the double taxation issue faced by C Corporations. While C Corporations are taxed at the corporate level, and then shareholders are taxed again on dividends they receive, S Corporations benefit from pass-through taxation. This means that the corporation itself does not pay income tax. Instead, the profits or losses are passed through to the shareholders and are reported on their personal income tax returns. This can result in significant tax savings under the right circumstances.

However, S Corporations must adhere to strict payroll requirements. Shareholders who work for the company must be paid “reasonable compensation” before any profits are distributed. Failure to do this can result in reclassification of those distributions as wages by the IRS, resulting in payroll tax liability.

S Corporation vs. Partnership

One key advantage of the S Corporation structure is the potential for tax savings on self-employment taxes. S Corporation shareholders who also serve as employees are required to pay themselves a “reasonable salary,” but any additional profits can be distributed as dividends, which are not subject to self-employment taxes. Partners in a Partnership, on the other hand, are subject to self-employment taxes on their entire share of the business income, which can lead to higher overall tax liability. S Corporations are aslo subject to stricter ownership restrictions, including a limit on the number of shareholders and restrictions on who can be a shareholder.

Overall, choosing between an S Corporation and a Partnership tax structure depends on various factors, including self-employment tax considerations, liability protection needs, ownership flexibility, and the preferred allocation of business income and losses.

LLC – Manager Managed vs. Member Managed

Limited Liability Companies (LLCs) provide the option of being either member-managed or manager-managed, each structure offering its own set of advantages and disadvantages depending on the specific needs and circumstances of the business.

In a member-managed LLC, all members (owners) participate in the day-to-day management of the business. This structure provides each member with direct control and decision-making power over the company’s operations. It can be advantageous for smaller businesses or start-ups where all members are actively involved in running the business and can effectively communicate and reach consensus on decisions. The transparency in operations and decision-making also fosters trust among the members. However, the potential downside of this arrangement is that decisions may take longer if there are disagreements among members, and members may also face liability issues due to their active participation in management.

In contrast, a manager-managed LLC assigns the management role to one or more designated managers, who may or may not be members of the LLC. This structure is advantageous when some members are passive investors or when the company is too large for all members to be effectively involved in daily operations. It allows the managers to make decisions more efficiently and can attract investors who want to contribute capital without participating in the management of the business. However, the non-managing members have less control over the business and must trust the manager(s) to run the company effectively. It can also potentially lead to conflicts of interest if the manager(s) are members with a larger ownership stake.

In conclusion, the choice between a member-managed and a manager-managed LLC structure depends on various factors including the size of the business, the involvement level of the members, and the need for efficient decision-making.

Manager Managed LLC vs. Corporation Board of Directors

Limited Liability Companies (LLCs) electing a manager-managed structure and Corporations governed by a board of directors represent two distinct ways of organizing a business, each with its own set of advantages and disadvantages.

In a manager-managed LLC, one or more designated managers handle the company’s daily operations and make key decisions. This structure can provide operational efficiency and is advantageous when some members prefer to be passive investors. Managers in this structure can act swiftly and make decisions without needing the consensus of all members, which can lead to increased agility in the business operations. However, non-managing members have less control over the business and have to trust the manager(s) to run the company effectively. This structure might also create a potential for conflicts of interest if the managers also hold ownership stakes in the business and their interests do not align with those of other members.

On the other hand, a Corporation is a more formal structure with a board of directors that oversees the company’s operations and makes strategic decisions. The board typically appoints officers to manage daily operations. This structure can provide a high level of oversight and accountability, which can be beneficial for larger businesses or those with numerous shareholders. It can also make raising capital easier, as this structure is familiar to investors and allows for the issuance of various classes of stock. However, Corporations are subject to more regulations and are required to fulfill certain formalities such as holding regular board and shareholder meetings, maintaining minutes of these meetings, and more. Moreover, decision-making can be slower due to the need for board approval.

In summary, a manager-managed LLC offers greater flexibility and simplicity but might lack the robust governance structure and capital-raising advantages of a Corporation. On the other hand, a Corporation offers a high level of oversight and potential for attracting executives with experience in the industry, but it comes with a higher administrative burden and regulatory scrutiny. The choice between these two structures depends on the business’s specific needs, including size, complexity, capital needs, and the preferred balance between control and responsibility.

Exit Strategies – LLCs and Corporations

When starting a business, it’s important to think about the end as well as the beginning, as the choice of exit strategy can greatly affect both the short-term operations and long-term success of a business. Different exit strategies may be suitable for small or mid-sized Limited Liability Companies (LLCs) and Corporations.

For an LLC, exit strategies can range from a simple dissolution, where the business ceases operations, pays off its debts, and distributes remaining assets to the members, to a more complex merger or acquisition. Another option is a member buyout, where one or more members buy out the interest of another, allowing for a smooth transition of ownership.

For Corporations, a common exit strategy is to sell the company, either to a larger corporation (a strategic acquisition) or to a private equity firm. Shareholders can also sell their shares to another party if permitted by the corporations shareholder agreement and bylaws.

Exit strategies are important considerations for new business owners as they affect the business’s potential for growth, the ability to attract investment, and the owners’ personal financial planning. Choosing an appropriate exit strategy involves the choice between and LLC and a corporation, considering the long-term goals of the business, the owners’ personal circumstances and financial needs, and the current market conditions. Therefore, while it might seem premature to think about exiting a business at the startup stage, understanding the range of possible exit strategies and their implications can contribute to making informed decisions about the business structure and operation strategy.