A Guide To Selecting The Right Business Entity For Your Company
Selecting the appropriate business entity is a fundamental step when forming a new company, and it can significantly impact the business’s legal and financial structure. The decision should be guided by an array of factors, such as the business owner’s financial goals, desired level of control, potential legal liability, tax implications, future investment needs, and long-term business goals.
A person considering forming a new company should start by understanding the different types of business entities. The four primary types are sole proprietorship, partnership, corporation, and limited liability company (LLC). Each has its unique characteristics that can fit different business models and objectives.
Sole proprietorships and partnerships are relatively simple and inexpensive to establish, but they provide no liability protection, meaning the owners’ personal assets can be at risk if the company incurs debt or legal issues. Corporations offer limited liability and have a separate legal identity from the owners, but they are more complex and costly to form and maintain. They also have certain tax implications, such as potential double taxation, where the corporation’s profits and the dividends paid to shareholders are both taxed. LLCs combine some advantages of both partnerships and corporations, offering limited liability protection and more flexible tax structures.
When deciding on the appropriate business entity, the person should consider their desire for control. If maintaining control over business decisions is important, a sole proprietorship or partnership might be suitable. If the person plans to seek external investment, a corporation or LLC might be better, as these structures allow for the issuance of shares or membership interests.
Tax implications are another crucial factor. Different entities have different taxation structures, and this can significantly impact the business’s net income. It is always advisable to seek advice from a tax advisor to understand the implications fully.
Potential legal liability is another critical aspect to weigh. If the business involves significant risk, choosing an entity that offers limited liability protection, such as a corporation or an LLC, could be beneficial to protect personal assets.
Future needs for investment and growth are also important considerations. If the company is likely to seek outside investors or plans to go public, a corporation could be the most appropriate entity due to its structured share system and familiar governance structure.
Lastly, long-term business goals should guide the decision. If the business aims to remain small and local, a simple structure like a sole proprietorship might suffice. If the goal is growth and expansion, an LLC or corporation would likely be more suitable.
In summary, selecting the right business entity involves careful consideration of several factors, including financial goals, control, legal liability, tax implications, investment needs, and long-term business goals.
What Types of Business Entities Are Available In Illinois?
Professional Service Corporations
Benefit Corporations (B Corp)
Not For Profit (NFP) Corporation
Limited Liability Company
Professional Limited Liability Company
Low-profit LLCs (L3C)
Limited Liability Partnership
A corporation is a legal entity that is distinct and separate from its owners, or shareholders. It is characterized by its strong liability protection, structured management and governance, transferability of shares, and distinct taxation system. An Illinois corporation, specifically, is governed by the Illinois Business Corporation Act of 1983 and is subject to the regulations and statutes outlined therein.
One of the main advantages of a corporation is its limited liability protection. This means that the personal assets of the shareholders are generally not at risk if the corporation faces financial debt or legal issues. Only the assets of the corporation can be used to satisfy the corporation’s debts or liabilities, thereby offering a protective layer to the owners.
The structured management and governance of a corporation is another important characteristic. A corporation is typically managed by a board of directors elected by the shareholders. The board of directors makes significant business decisions, while day-to-day operations are managed by officers appointed by the board. This structure provides a system of checks and balances and ensures a separation between ownership and management.
Transferability of shares is another defining feature of a corporation. Shares in a corporation can be easily bought, sold, or transferred without affecting the corporation’s existence or operations. This makes it easier for the corporation to attract investors and raise capital, offering a level of flexibility that other types of business entities might not provide.
In terms of taxation, corporations are subject to what’s commonly referred to as “double taxation”. The corporation pays tax on its profits, and then any dividends distributed to shareholders are taxed again on the shareholders’ personal income tax returns. However, in some cases, corporations can elect S corporation status to avoid double taxation and have profits, losses, deductions, and credits pass through directly to shareholders.
There are several reasons why an individual would choose a corporation as a business entity. If the business entails significant risk, forming a corporation would be advantageous due to the limited liability protection. If the business plans to seek external investment or go public in the future, a corporation’s ability to issue shares would make it a fitting choice. Furthermore, if the business owner values a structured management system and the separation of management from ownership, a corporation’s established governance structure would be beneficial. Lastly, for tax purposes, individuals might prefer a corporation, especially if they qualify for and choose S corporation status to pass corporate income, losses, deductions, and credits through to their personal tax returns.
In summary, a corporation offers a range of benefits, including limited liability protection, structured governance, share transferability, and specific tax advantages. However, the decision to form a corporation should be based on a thorough evaluation of the business’s unique needs, goals, and circumstances.
Professional Service Corporations
A Professional Service Corporation (PSC), as recognized under the Illinois Professional Service Corporation Act (805 ILCS 10), is a specific type of business entity designed for licensed professionals who offer a professional service, such as lawyers, accountants, engineers, architects, and consultants.
The fundamental characteristics of a PSC are quite similar to a general corporation in many respects, including limited liability protection, transferability of shares, and tax treatment. However, a PSC differs from a standard corporation in several key ways. For instance, a PSC can only be created by individuals licensed to practice the same profession. Additionally, only professionals who are licensed to provide the same service can be shareholders, officers, directors, or employees of a PSC. In other words, a PSC serves to allow professionals to incorporate their businesses while maintaining the legal and ethical responsibilities of their profession.
Like a traditional corporation, a PSC provides its shareholders with limited liability protection. This means that shareholders are typically not personally responsible for the debts and liabilities of the corporation, offering a level of personal asset protection. However, this does not shield professionals from malpractice claims, as they remain personally liable for their own professional conduct.
A PSC may be advantageous from a tax perspective. Just like a standard corporation, a PSC is subject to corporate income tax. However, depending on the specifics of the business and its income, a PSC might choose to elect S corporation status for tax purposes, allowing income and losses to pass through to the shareholders’ personal tax returns, thereby avoiding double taxation.
The structure of a PSC can also provide significant benefits in terms of business continuity. Since a PSC is a separate legal entity, it can continue to exist beyond the lifespan of its individual members. Changes in shareholders do not affect the existence of the PSC, ensuring business continuity and ease of ownership transfer.
A person would typically select a PSC as their business entity for a combination of these reasons. If they are a licensed professional seeking to join forces with other professionals in the same field, a PSC provides a framework that acknowledges their unique legal and ethical responsibilities while offering limited liability protection, potential tax advantages, and business continuity.
An Illinois Medical Corporation, regulated under the Illinois Medical Corporation Act (805 ILCS 15), is a specific type of corporate structure designed for licensed medical professionals to provide medical services. This corporate entity shares some characteristics with standard corporations and professional service corporations, but it also carries its own unique features and requirements due to the specialized nature of the medical profession.
One of the key characteristics of a medical corporation is that its shareholders, directors, officers, and employees are required to be licensed medical professionals. This differs from a standard corporation where there are typically no professional licensure requirements for these roles. The corporation can only provide services within the scope of practice for which its members are licensed, which ensures that the medical corporation is operated by individuals equipped with the necessary medical knowledge and expertise.
Like other corporations, a medical corporation offers limited liability protection, meaning that shareholders’ personal assets are generally protected from the corporation’s debts or liabilities. However, this protection does not extend to professional malpractice, and medical professionals within the corporation remain personally liable for their own professional conduct.
Medical corporations can also provide potential tax benefits. While they are subject to corporate income tax, medical corporations can elect to be treated as an S corporation for tax purposes. This would allow the corporation’s income, losses, deductions, and credits to pass through to shareholders’ personal income tax returns, potentially avoiding double taxation.
A medical corporation also offers benefits regarding business continuity. As a separate legal entity, the corporation can continue operating beyond the lifespan of its individual members. The corporation’s existence is not affected by changes in shareholders, ensuring smooth ownership transfer and continuity of the medical practice.
The reasons a licensed medical professional would choose to form a medical corporation can vary. They may wish to take advantage of the limited liability protection, separating their personal assets from the corporation’s liabilities while understanding that this doesn’t absolve them from liability for their own professional actions. The potential tax benefits and the continuity of the business provided by the corporate structure can also be appealing. Lastly, the requirement that all shareholders, directors, officers, and employees be licensed medical professionals can be beneficial for maintaining a high standard of medical service, fostering trust, and ensuring the corporation is managed by individuals who understand the unique demands of the medical field.
As with any major business decision, the formation of a medical corporation should be carefully considered in consultation with our business attorneys and financial advisors to ensure the structure aligns with the individual’s professional goals and the needs of the medical practice.
An Illinois Close Corporation, or Closely Held Corporation, governed by the Illinois Business Corporation Act of 1983 (805 ILCS 5), is a unique form of corporate structure that is designed for businesses with a small number of shareholders. This type of entity combines features of a standard corporation with elements akin to a partnership or sole proprietorship, resulting in a structure that might be particularly suited for small, family-owned, or closely knit businesses.
The defining characteristic of a close corporation is the small and limited number of shareholders, usually with a cap specified in the corporation’s bylaws or the relevant legislation. The shares of a close corporation are generally not publicly traded, and any transfer of shares is often subject to restrictions to maintain the closely held nature of the corporation. This provides the shareholders with greater control over the business.
Similar to a standard corporation, a close corporation provides its shareholders with limited liability protection. This means the shareholders are typically not personally liable for the corporation’s debts and obligations. However, as in other corporate structures, this does not protect the shareholders from their own acts of wrongdoing or negligence.
Another unique feature of a close corporation is the possibility for more flexible management structures. Close corporations can often operate without a formal board of directors, allowing shareholders to participate more directly in the management and decision-making processes. This can make a close corporation feel more like a partnership or sole proprietorship in its day-to-day operations.
In terms of taxation, close corporations are initially treated as C corporations for tax purposes, which means they are subject to the possibility of double taxation. However, under certain circumstances, close corporations can choose to be taxed as S corporations, allowing income, losses, deductions, and credits to pass through to shareholders’ personal income tax returns, thereby avoiding double taxation.
The reasons for choosing a close corporation typically stem from the desire for more control and flexibility in management, combined with the protections and advantages of a corporate structure. A close corporation may be an attractive choice for small businesses, family-owned companies, or businesses where the owners want to retain significant control over the operation and management of the company. The limited liability protection, the potential for advantageous tax treatment, and the operational flexibility make the close corporation a compelling choice for many small to medium-sized businesses.
As always, the decision to form a close corporation should be made in consultation with legal and financial advisors to ensure that the chosen structure aligns with the business’s goals, needs, and circumstances.
Benefit Corporation (B CORP)
An Illinois Benefit Corporation, governed by the Illinois Benefit Corporation Act (805 ILCS 40), is a unique type of for-profit corporate entity designed to balance public benefits alongside traditional profit-driven business goals. The underlying principle of a Benefit Corporation, often referred to as a B Corporation, is to create a material positive impact on society and the environment, while also operating as a successful business.
Benefit Corporations are required by law to consider the impact of their decisions not only on shareholders but also on society and the environment. They are tasked with creating a general public benefit, which could encompass a wide range of positive impacts, from environmental sustainability to supporting underserved communities. This broader set of obligations goes beyond the traditional corporate focus on maximizing shareholder value.
Another unique characteristic of Benefit Corporations is the requirement for transparency. They are typically required to publish an annual benefit report assessing their social and environmental performance using a comprehensive, credible, independent, and transparent third-party standard. This report, which is made available to the public, outlines the ways in which the corporation is meeting its obligations to deliver public benefits.
Like other corporations, Benefit Corporations provide shareholders with limited liability protection, meaning shareholders are generally not personally liable for the corporation’s debts and obligations. Benefit Corporations can also be taxed as either a C corporation or an S corporation, depending on the specific characteristics of the corporation and the preferences of the shareholders.
Entrepreneurs and business owners might choose to form a Benefit Corporation for a variety of reasons. One primary reason is the desire to build a business that not only generates profits but also creates tangible social and environmental benefits. This type of corporate structure enables businesses to make a clear public commitment to positive social and environmental impact, which can differentiate them in the marketplace and help attract customers, investors, and employees who prioritize corporate social responsibility.
Benefit Corporations also offer legal protection for directors and officers to consider the interests of all stakeholders, not just shareholders, in decision-making processes. This can provide the business with greater flexibility to make decisions that align with its mission and values, even if these decisions may not maximize shareholder value in the short term.
In conclusion, the formation of a Benefit Corporation could be an appealing choice for businesses committed to achieving social and environmental objectives alongside their financial goals.
Not For Profit Corporation (NFP)
An Illinois Not For Profit Corporation (NFP), governed by the General Not For Profit Corporation Act of 1986 (805 ILCS 105), is a distinct type of business entity designed to serve a purpose beyond the generation of profit. These organizations, commonly referred to as nonprofit organizations, are mission-driven, with their primary focus on fulfilling a specific purpose that benefits the public, a specific group of individuals, or the members of the NFP.
A defining characteristic of an NFP is its commitment to reinvest any surplus income back into the organization to further its mission. Unlike for-profit businesses, NFPs do not distribute earnings to owners or shareholders. This differentiates NFPs from other business entities and underscores their focus on social, educational, charitable, scientific, or religious objectives, among others.
An NFP can generate income, and in fact, many do through fundraising, grants, service fees, and other income-generating activities. However, this income must be used to further the organization’s mission rather than being distributed as profit.
Another key characteristic of NFPs is their tax-exempt status. NFPs can apply for tax-exempt status under Section 501(c) of the Internal Revenue Code, which, if granted, exempts them from federal corporate income taxes. They may also be exempt from state and local taxes. However, to maintain this tax-exempt status, NFPs must comply with certain regulations, such as filing annual information returns and avoiding activities that significantly benefit private interests.
A person might choose to form an NFP for several reasons. If their primary goal is to serve a specific mission or cause, rather than to generate profit, an NFP is a natural choice. Forming an NFP allows individuals or groups to create an organizational structure around their cause, making it easier to seek grants and donations, and providing a formal entity for managing activities and assets related to the mission. The tax-exempt status of NFPs can also be a significant advantage, allowing more resources to be directed towards achieving the organization’s mission.
However, establishing and running an NFP involves considerable regulations and oversight, including stringent reporting requirements and restrictions on activities and the use of income.
Limited Liability Company
An Illinois Limited Liability Company (LLC), as stipulated under the Illinois Limited Liability Company Act (805 ILCS 180), is a unique type of business entity that offers the advantages of limited liability, operational flexibility, and versatile tax options.
A significant feature of an LLC is the limited liability protection it provides its members (owners). This means that members are typically not personally liable for the company’s debts and liabilities. Therefore, the personal assets of the members are generally protected if the LLC incurs debts or is sued, similar to the protections offered to shareholders of a corporation.
In terms of operational structure, an LLC offers a high degree of flexibility. Unlike corporations, which are required to have a board of directors and hold regular board meetings, an LLC can be managed by its members or designated managers. There are fewer formalities and less paperwork involved in the day-to-day operation of an LLC, which can simplify management and decision-making processes.
Tax flexibility is another significant benefit of an LLC. By default, LLCs are treated as pass-through entities for tax purposes, similar to sole proprietorships and partnerships. This means that the company’s profits are only taxed once, on the members’ individual tax returns. However, an LLC can also choose to be taxed as a C Corporation or an S Corporation if that better suits the company’s needs. This flexibility allows members to select the most beneficial tax treatment for their specific circumstances.
The reasons for choosing an LLC as a business entity are often tied to these advantages. The limited liability protection can provide members with peace of mind by protecting their personal assets. The operational flexibility of an LLC can be appealing for smaller businesses or those seeking a less formal and more manageable operational structure. The tax flexibility also allows members to optimize their tax situation based on their income, business expenses, and personal tax circumstances.
Professional Limited Liability Company
An Illinois Professional Limited Liability Company (PLLC), as governed by the Professional Limited Liability Company Act (805 ILCS 185), is a specialized business entity designed to offer certain licensed professionals the benefits of an LLC while also meeting the specific requirements of their professions.
Like standard LLCs, PLLCs offer limited liability protection to their members. This means that, similar to a traditional LLC, the members of a PLLC are typically not personally liable for the company’s debts and obligations. As such, members’ personal assets are generally protected if the PLLC incurs debts or is sued.
However, unlike a traditional LLC, all members of a PLLC must be licensed professionals, and the PLLC can only provide services within one specific profession. For example, a PLLC formed by lawyers can only offer legal services. Professions that typically form PLLCs can include law, medicine, architecture, engineering, accounting, and others, depending on state law. Importantly, while a PLLC provides limited liability for business debts and claims against the company, it does not shield individual professionals from malpractice claims related to their professional services.
Operationally, a PLLC operates similarly to a traditional LLC, offering a high degree of operational flexibility. This includes the ability for members to manage the company or to appoint managers for this role. Like a traditional LLC, a PLLC also has fewer formalities and less required paperwork than corporations, simplifying management and decision-making processes.
From a taxation perspective, PLLCs are treated as pass-through entities by default, meaning profits and losses are reported on the members’ individual income tax returns. However, depending on the circumstances, a PLLC can elect to be taxed as a corporation.
Professionals might choose a PLLC because it allows them to benefit from the flexibility and limited liability of an LLC while also complying with the regulations governing their profession. The PLLC structure also reinforces the professional nature of the services offered, which may enhance the company’s reputation and credibility in the eyes of clients and the public.
However, forming a PLLC involves specific legal and regulatory requirements, and not all professions are eligible to form PLLCs in every state.
Series Limited Liability Company
An Illinois Series Limited Liability Company (Series LLC), as governed by the Illinois Limited Liability Company Act (805 ILCS 180), is a distinct type of LLC that allows the formation of separate “series” or “cells” within the umbrella of a single LLC. Each series operates as a quasi-independent entity with its own assets, liabilities, members, and business objectives. This innovative structure is only available in certain jurisdictions, with Illinois being one of the states that permits its formation.
A central characteristic of a Series LLC is its ability to segregate assets and liabilities. Each series within a Series LLC can have its own assets and business operations, and the liabilities of each series are generally limited to that series. This means that the creditors of one series typically cannot reach the assets of another series or the general assets of the Series LLC. This internal shield is a unique feature that differentiates Series LLCs from traditional LLCs.
Operational flexibility is another important feature of Series LLCs. Each series can be managed differently, have different members, and pursue different business objectives. This means that a single Series LLC could be used to manage multiple, distinct business ventures, properties, or investment portfolios.
From a tax perspective, each series within a Series LLC can potentially be treated as a separate entity for federal tax purposes, depending on certain factors. However, the specific tax treatment can be complex and may vary depending on the circumstances, so professional tax advice is essential.
Entrepreneurs and business owners may choose to form a Series LLC for a variety of reasons. The structure offers a cost-effective way to manage multiple business ventures or properties under a single LLC, potentially reducing the administrative burden and cost of forming and maintaining multiple, separate LLCs. The segregation of assets and liabilities can also provide enhanced asset protection, making Series LLCs an appealing choice for businesses with diverse assets or risk profiles, such as real estate investors or holding companies.
However, despite these advantages, Series LLCs are relatively new and complex structures, and laws governing them can vary significantly among the states that permit their formation. There can also be uncertainties around their treatment in states that do not recognize this entity type, particularly in the context of litigation or bankruptcy. Furthermore, the tax implications can be complicated and may not always be favorable.
Low Profit Limited Liability Company (L3C)
An Illinois Low-Profit Limited Liability Company (L3C), governed by the Illinois Limited Liability Company Act (805 ILCS 180), is a unique type of business entity that combines the operational flexibility and legal protection of a Limited Liability Company with the social purpose of a non-profit organization. The L3C business model is structured to simplify the process for socially-oriented businesses to attract investment from foundations, socially-minded investors, and other capital sources.
The primary characteristic that sets an L3C apart from a traditional LLC is its commitment to a socially beneficial purpose. While an L3C is a for-profit entity and can generate profits for its owners, the primary aim of an L3C must be to achieve a socially beneficial objective. This social mission must be explicitly stated in the company’s articles of organization.
Another key feature of an L3C is its ability to attract Program Related Investments (PRIs) from private foundations. Traditional LLCs and other for-profit entities can receive PRIs, but foundations often hesitate to make such investments due to the complex IRS regulations surrounding them. The L3C structure is designed to meet IRS requirements for PRIs, which can make it easier for foundations to invest in L3Cs while fulfilling their philanthropic goals.
Despite being a for-profit entity, an L3C does not provide significant tax advantages for its owners. Profits from the L3C pass through to the owners, who must report this income on their personal tax returns. Unlike a non-profit organization, an L3C is not tax-exempt, and contributions to an L3C are not tax-deductible for the donors.
Entrepreneurs might choose to form an L3C for various reasons. The L3C structure can be a viable option for a socially conscious business that wants to combine a for-profit model with a primary goal of achieving a charitable or educational purpose. It can also be an attractive choice for businesses seeking to secure funding from private foundations through PRIs. However, since the L3C is a relatively new and less common business structure, it’s crucial for entrepreneurs to ensure this type of entity aligns with their business goals and the legal and financial implications are fully understood.
Limited Liability Partnerships
A Limited Liability Partnership (LLP), as the name suggests, is a type of partnership arrangement that offers its partners limited liability protection. This means that, much like in a corporation or an LLC, partners in an LLP are generally not personally liable for the business debts of the partnership or the negligence of other partners.
One of the defining features of an LLP is that, while it offers similar liability protection as a corporation or an LLC, it also maintains the tax advantages and operational flexibility of a partnership. Profits and losses in an LLP flow through directly to the partners, and these are reported on the partners’ individual tax returns. This bypasses the potential double taxation that can occur with some other types of business entities.
In terms of governance and operational flexibility, an LLP operates very similarly to a general partnership. Partners have the flexibility to decide how they want to manage the business and can outline these specifics in the partnership agreement. Each partner can participate in the management of the business, unlike in a limited partnership, where limited partners cannot be involved in day-to-day operations.
Another key characteristic of an LLP is the protection it offers against the actions of other partners. In an LLP, no partner is personally liable for the negligent acts of another partner, which can be an important consideration for professionals working together where the potential for professional malpractice exists.
An LLP is often chosen as a business structure by groups of professionals such as attorneys, accountants, or architects, where all the partners want to take an active role in business operations without taking on personal liability for others’ actions. It combines the benefits of partnership, such as flexibility and simplicity, with the limited liability advantage typically associated with corporations and LLCs.
However, it’s worth noting that the regulations governing LLPs can vary widely from state to state, and some states limit LLPs to certain professions.
A Limited Partnership (LP) is a unique type of partnership structure that consists of at least one general partner and one or more limited partners. This business entity blends elements of partnerships and corporations, providing an arrangement that offers benefits to different types of partners.
One of the key characteristics of an LP is the distinction between general and limited partners. The general partner(s) manage the business and are personally liable for the partnership’s debts and obligations. They play an active role in the operation of the business, similar to partners in a general partnership.
On the other hand, limited partners are essentially passive investors. They contribute capital to the partnership but do not participate in the management or daily operations of the business. Their liability is typically limited to the extent of their investment in the LP, meaning they stand to lose only what they invested and their personal assets are generally not at risk for the partnership’s debts. This characteristic of limited liability is where LPs share similarities with corporations and limited liability companies (LLCs).
From a tax perspective, an LP, like other partnerships, is a pass-through entity. This means that the income, deductions, and credits of the LP pass through to the partners, who report these items on their individual tax returns. The LP itself does not pay income tax, avoiding the potential issue of double taxation that affects corporations.
An LP can be an attractive choice for certain business ventures, especially those that are looking to raise capital from investors who prefer not to be involved in the management of the business. It offers these investors limited liability and a share in the profits without requiring them to take on the responsibilities of managing the business. Meanwhile, the general partner(s) retain control over the business operations. Common uses of the LP structure include real estate investment, film production, and some types of private equity and venture capital arrangements.
However, the LP structure has some potential downsides, especially for the general partner(s). The unlimited liability faced by the general partner(s) is a significant risk, potentially exposing their personal assets to the partnership’s debts and obligations. Additionally, as with any business structure, there are legal and regulatory requirements to consider.
Contact Our Chicago Business Attorneys
Starting a business is a journey filled with both exciting opportunities and complex legal requirements. As you embark on this journey, we understand the importance of ensuring every step you take is sound, secure, and beneficial for your long-term success. We regularly assist individuals and organizations navigate the intricate process of business formation. Our team has an in-depth understanding of the various types of business entities — be it Limited Liability Companies, Corporations, Partnerships, or others.
Our legal services are comprehensive, ranging from advising on the appropriate business structure to meet your unique needs and goals, drafting organizational documents, ensuring compliance with state regulations, assisting with licensing requirements, and much more.
Our commitment is not only to help you establish your business legally and effectively but also to provide continued support as your business grows and evolves. Our team of experienced attorneys can offer insights and guidance on business contracts, employment law, intellectual property protection, and potential legal challenges that may arise in your business journey.
To learn more about our services or to schedule a consultation, please reach out to us by completing our contact form. We make every effort to respond to all inquiries within 1 business day. We look forward to helping you transform your entrepreneurial vision into a thriving business.