Protect Your Business Profits byIncorporating

Choosing the Best Form of Business for Your Needs

Entrepreneurs should seriously weigh the pros and cons of various forms of business organizations. Your small business can be set up as a sole proprietor, corporation, S-corporation, partnership, non-profit organization, Limited Liability Company, Limited Liability Partnership, and in some states a Professional Limited Liability Company/Partnership. Such a dizzying array of choices! Which form of organization is best for your business depends on several factors, some of which are tax-related, some of which are business-related, and some of which are influenced by legal concerns.

Moreover, you may need a different form of organization at different times in the life of your business. So don't be afraid to change your form of business if your needs change.

This article discusses the following four topics:

  • The Big Picture (profits & losses, federal & state taxation)
  • Forms of Business (the six business organizations for federal tax purposes)
  • Tax Factors (the taxation of profits and losses)
  • Business & Legal Factors (number of shareholders, raising capital, cash-flow issues, limited liability, ease of incorporation)

This article does not discuss various state-specific issues or the forms, documents, and process for incorporating your business.

The Big Picture

The decision about which form of business is best for you depends on a lot of factors. Primarily I will discuss the tax-implications of various forms of business. Probably the most important thing you need to think about right now is whether your business is going to be profitable over the long-term.

Hopefully your business will be profitable over the long run. But new businesses often encounter several years of losses before the business starts to be profitable. The biggest question you need to ask yourself is how you want to handle your business losses, and how you want to handle your business profits. This article assumes that your business is already profitable, or will become profitable in the near future. Deciding on a form of organization when your business is losing money is discussed in a separate article.

All of the forms of business organizations can be separated into two groups: corporations where tax is assessed at the corporate level and "pass-through entities" where tax is assessed at the shareholder level. The phrase "pass-through entity" means that profits are not taxed to corporation. Instead, 100% of profits (or losses) are distributed (or passed-through) to the shareholders. Each shareholder reports his or her share of profits or losses on his or her individual Form 1040.

Here's the breakdown of the various types of organizations.

Taxed at the corporate level:

  • Corporations,
  • LLCs taxed as corporations, and
  • Non-profit organizations

Taxed at the shareholder level ("Pass-through entities"):

  • Schedule C sole proprietors,
  • S-Corporations,
  • Partnerships, and
  • LLC/LLP/PLLC/PLLP taxed as partnerships

6 Forms of Business for IRS Purposes

You incorporate your business in the state you conduct business in. If you live and work in Texas, for example, you would incorporate your business in Texas. If your business conducts business throughout the United States, you need to incorporate in the state where your headquarters will be. If you have a substantial business presence in another state, you may need to let that state know and file state tax returns or sales tax returns based on your business earnings in that other state. Businesses with substantial nationwide activity sometimes choose to be incorporated in Delaware or Nevada because of the business-friendly laws in those states. Even if you incorporate in Delaware or Nevada, you will still need to register your business in those states where you have an actual business location.

The various forms of organization are established by state law. There are a wide variety of business organizations recognized by the states. For example, a popular form of organization is the Limited Liability Company (LLC). The LLC is a state designation. At the federal level, an LLC is taxed as a partnership. If the LLC so chooses, it can be taxed as a corporation at the federal level. While there are a variety of designations at the state level, for federal tax purposes there are only 6 forms of business organizations:

  • Sole Proprietor (1040 Schedule C),
  • Corporation (1120),
  • Partnership (1065),
  • S-Corporation (1120S),
  • Trust (1041), and
  • Non-profit organization (990)

Sole proprietors are unincorporated businesses. They are also called independent contractors, consultants, or freelancers. There are no forms you need to fill out to start this type of business. The only thing you need to do is report your business income and expenses on your Form 1040 Schedule C. This is the easiest form of business to set up, and the easiest to dissolve. (An LLC with only a single shareholder, a so-called single-member LLC, is taxed as a sole proprietor on a Schedule C.)

Corporations are incorporated businesses. Every form of business besides the sole proprietor is considered a separate entity, and this often provides a measure of legal and financial protection for the shareholders. The shareholders of corporations have limited liability protection, and corporations have full discretion over the amount of profits they can distribute or retain. Corporations are presumed to be for-profit entities, and as such they can have an unlimited number of years with losses. Corporations must have at least one shareholder.

Partnerships are incorporated businesses. Like corporations, partnerships are separate entities from the shareholders. Unlike corporations, partnerships must have at lease one General Partner who assumes unlimited liability for the business. Partnerships must have at least two shareholders. Partnerships distribute all profits and losses to their shareholders without regard for any profits retained by the business for cash flow purposes. (LLCs are taxed as partnerships, unless they choose to be taxed as corporations.)

S-Corporations have features similar to a partnership. An S-corporation must have at least one shareholder, and cannot have more than 100 shareholders. If any shareholder provides services to the business, the S-Corp must pay that shareholder a reasonable salary. This salary is a separate payment from distributions of profits or losses.

Trusts are usually formed upon the death of an individual and are designed to provide continuity of the investments and business activities of the deceased individual. We will not discuss trusts further.

Nonprofits are corporations formed for a charitable, civic, or artistic purpose. Nonprofits are generally exempt from federal and state taxation on their income, and so they are often called "exempt organizations." Nonprofits have substantial responsibilities for reporting their activities, income, and assets to ensure that they are in compliance with federal and state laws governing charities. For additional information on starting, managing, and developing a not-for-profit organization, see the About.com Guide to Nonprofits.

As mentioned above, sole proprietors, S-corporations, and partnerships are taxed at the shareholder level. Corporations, however, are taxed at the corporate level.

Tax Factors to Consider

Some of the decision factors include how profitable your business is, and how much of those profits you want distributed to you versus re-investing the profits back into the business.

Generally speaking, profitable businesses should be C-corporations (regular corporations that file on Form 1120). The lowest tax bracket for a C-Corp is the 15% bracket that goes from zero to $50,000. It may be possible to manage your small business finances so that your corporation will never pay more than 15% in taxes.

For other forms of business (partnership, S-Corp, LLC partnerships, Schedule C), tax is not levied at the corporate level, instead all profits are fully distributed to the shareholders, and reported & taxed on each shareholder's 1040. On a profitable business, this will increase each shareholder's taxable income, and possibly move them to a higher tax bracket.

If the business is losing money, losses are retained by a C-Corporation and offset next year's income. In other forms of business, the loss is passed-through to the shareholder, where the loss reduces the shareholder's total income. Losses on a pass-through entity provide a significant tax break in the year the loss occurs. Losses in a regular C-Corporation provide a significant tax break in the future by reducing future income. Generally speaking, business owners prefer to operate an unprofitable business as an S-Corp, partnership, LLC, or sole proprietor, and prefer to operate profitable businesses as a regular C-Corp, LLC, or partnership.

S-Corporations can be owned by a single person, and so the IRS expects S-Corps to pay a reasonable salary to the managing shareholder in addition to a profit distribution. Naturally, I am inclined to pay myself more as profits and less as salary in order to minimize the payroll taxes (Social Security and Medicare taxes) that are due on salary. The IRS is aware of this situation and is on the lookout for it. The IRS expects S-Corps to pay reasonable compensation for the services of the officers. "Reasonable compensation" can be interpreted in different ways. But it means what you would expect to be paid if you were hired by someone else. The fastest way to an IRS audit as an S-Corp is to report zero officer compensation.

Partnerships and Limited Liability Companies are taxed at the shareholder level, much like an S-Corp. The IRS, however, has not demanded that partnerships pay a reasonable salary to managing shareholders. General partners in a partnership are considered self-employed, and their share of profits are subject to the self-employment tax. Limited partners, however, pay self-employment tax only on "guaranteed payments" for services rendered to the partnership. Every partnership must have at least one General Partner. LLCs, however, can be composed of shareholders who designate all management responsibility to salaried employees. Thus on an LLC, shareholders would not be subject to self-employment tax unless they receive a "guaranteed payment" for services rendered to the LLC. (See IRS Publication 541, Partnerships, Partner's Income or Loss.)

Schedule C sole proprietors are taxed on their 1040. The entire business profit is considered self-employment income, and is reported on a Schedule C. As a Schedule C business, you do not pay yourself a salary. Only salaries and payroll taxes paid for other employees are allowable business expenses.

C-Corporations are taxed separately from their shareholders. Any salary paid to yourself is deductible as a business expense to the C-Corporation. Also, if the C-Corp distributes dividends to the shareholders, the dividends are taxed at a special "qualified dividends" tax rate of 15%. Dividends from a corporation are taxed twice, once at the corporate level and again at the shareholder level. Since the corporation has already paid tax on its earnings, this distribution qualifies as a "qualified dividend" at the lower 15% tax rate. On my 1040, I pay only 15% tax on these dividends.

C-Corporations are the only business that can split profits between retained earnings and dividends. S-Corps and Partnerships must report all profits as a distribution, even if the business has retained some of the cash for next year's operating expenses. The ability to choose when and how much you are taxed by controlling when and how much money is distributed is a crucial tax advantage for C-Corporations. This means that there is more flexibility with a C-Corporation to pick your tax rate than there is with the other options. However, S-Corps, partnerships, and Schedule C businesses are easier to set up and operate.

Business & Legal Factors to Consider

Business considerations play a crucial role in deciding which form of organization is best for your enterprise. Balance the tax benefits of incorporating with various business and legal needs.

Ability to Raise Capital

If your new venture has a pressing need to raise capital from outside investors, forming a C-corporation is the easiest way to satisfy the demands of investors. C-Corporations can have an unlimited number of shareholders, can have different classes of stock, and do not need to be dissolved if a shareholder leaves. Partnerships, by contrast, must be dissolved whenever more than 50% of the partnership interest changes hands. Raising capital in a partnership is consequently more involved. S-Corporations are limited to 100 shareholders. Schedule C sole proprietors are limited to only one owner, so sole proprietors have no ability to raise capital from outside investors.

Ability to Transfer Ownership

At some point in time you may need to transfer ownership of a business to someone else. You could be selling your business, transferring some of the ownership to your children, or bringing in a new business partner. With C-corporations and S-corporations you can add new shareholders and transfer shares with relative ease. Transferring a significant portion of a partnership, by contrast, may require that the partnership terminate and a new partnership be formed. Finally, sole proprietors cannot transfer ownership of their business. If they want out, they can sell all the assets and liabilities of the business to someone else, but the buyer would have to form his own business.

Separation of Ownership & Management

In C-corporations, Limited Liability Companies, and Limited Partnerships, shareholders are separate from management. Shareholders do not take on any management responsibilities, and managers do not shoulder any ownership responsibilities. This separation is crucial for keeping liabilities from bad management decisions from depleting the shareholder's personal assets. By contrast, general partners in a partnership, shareholders in S-corporations, and sole proprietors are not separate from management. They actively engage in management decisions and daily business activities.

Limited Liability Protection

The major legal consideration in choosing a form of business is limited liability protection. Limited liability means the owners of the business are only liable for the capital they have invested. Let's say my company is sued for $1 million, but as a shareholder I have invested only $10,000. With limited liability, the most I can lose is the $10,000 I have invested. My personal assets (house, car, bank account) cannot be touched. Limited liability is available for C-corporations, S-corporations, Limited Liability Companies, and limited partners in a Limited Partnership or Limited Liability Partnership.

General partners in a partnership and sole proprietors, however, have unlimited liability. Creditors and lawsuits can go after the owner's personal assets (real estate, bank accounts, etc.). As such, partnership and sole proprietor are good only for businesses with small risk for liability exposure. Good examples would be a partnership formed to invest in the stock market, or freelance writers and other artists with low risk of being sued. If you are at risk of being sued for accidents, bad decisions, or property damage, you should consider a form of organization that offers limited liability protection.

Ease of Incorporation

Setting up a sole proprietor business is the easiest thing to do. You actually don't need to do anything until you file your first business tax return on your Schedule C. This is also the easiest business to shut down – you just stop being in business. All the other forms of organization, however, require filing various papers with your state government and with the Internal Revenue Service. To incorporate your business, you will need to write up your Articles of Incorporation, By-Laws, file various documents with your state government, obtain an Employer Identification Number from the IRS, and once approved, submit these documents to your bank to set up a business bank account.

You can incorporate a business yourself, or you can hire a professional incorporation service. Fees for a professional firm can run from $300 to over $1,000. You may also need the services of an attorney. State governments charge filing fees for processing your incorporation documents. Fees vary by state and can vary by the type of organization you want to form. You will need to file a Doing Business As form with your county government to register your business name, and this requires a filing fee and newspaper costs for announcing your business name to the public. These fees can quickly add up, so have solid reasons for incorporating, and understand how your form of organization will achieve your business, legal, and tax needs.