Legal Guide For Starting And Running A Small Business

Legal Guide For Starting And Running A Small Business
Legal Guide
for Starting
& Running a
Small Business
by Attorney Fred S. Steingold
edited by Ilona Bray
Eighth edition
Nolo’s Legal Updater
We’ll send you an email whenever a new edition of your book
is published! Sign up at
www.nolo.com/legalupdater
.
Updates @ Nolo.com
Check
to nd recent changes
in the law that aff ect the current edition of your book.
Nolo Customer Service
To make sure that this edition of the book is the most
recent one, call us at
800-728-3555
and ask one of
our friendly customer service representatives.
Or fi nd out at
www.nolo.com
.
e law changes, but Nolo is always on top of it! We off er several
ways to make sure you and your Nolo products are always up to date:
NOLO
always up to date
always up to date
2
1
3
We believe accurate and current legal information should help you solve
many of your own legal problems on a cost-e cient basis. But this text
is not a substitute for personalized advice from a knowledgeable lawyer.
If you want the help of a trained professional, consult an attorney
licensed to practice in your state.
NOLO
please note
Legal Guide
for Starting
& Running a
Small Business
by Attorney Fred S. Steingold
edited by Ilona Bray
Eighth edition
EIGHTH EDITION MARCH 2005
Editor ILONA BRAY
Illustration MARI STEIN
Book Design TERRI HEARSH
Cover Design SUSAN PUTNEY
Production SARAH HINMAN
Proofreading ROBERT WELLS
Index MICHAEL FERREIRA
Printing DELTA PRINTING SOLUTIONS, INC.
Steingold, Fred.
Legal guide for starting & running a small business / by Fred S. Steingold ; edited by
Ilona Bray. -- 8th ed.
p. cm.
Includes index.
ISBN 1-4133-0177-0
1. Small business--Law and legislation--United States--Popular works. 2. Business
enterprises--Law and legislation--United States--Popular works. I. Title: Legal guide for
starting and running a small business II. Bray, Ilona M., 1962- III.Title
KF1659.Z9S76 2005
346.73’0652—dc22
2004065486
Copyright © 1992, 1995, 1997, 1998, 1999, 2001, 2003, and 2005 by Fred Steingold
All rights reserved. Printed in U.S.A.
No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any
form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the
prior written permission of the publisher and the author.
For information on bulk purchases or corporate premium sales, please contact the Special Sales
Department. For academic sales or textbook adoptions, ask for Academic Sales. Call 800-955-4775
or write to Nolo, 950 Parker Street, Berkeley, CA 94710.
ACKNOWLEDGMENTS
Special thanks to Nolo Publisher Jake Warner—the cheerful perfectionist whose ideas infuse every page
of this book—and to Nolo Editor Mary Randolph, who deftly whipped the early manuscripts into final
shape.
Thanks, too, to the rest of the remarkable Nolo family for their invaluable contributions—especially
Steve Elias, Robin Leonard, Barbara Hodovan, Jackie Mancuso, Tony Mancuso, Barbara Kate Repa,
Beth Laurence, and Ilona Bray.
In addition to the folks at Nolo, these other professionals generously shared their expertise to make this
book possible:
• Attorneys Charles Borgsdorf, Larry Ferguson, Sandra Hazlett, Peter Long, Michael Malley,
Robert Stevenson, Nancy Welber, and Warren Widmayer.
• Certified Public Accountants Mark Hartley and Lonnie Loy.
• Insurance Specialists James Libs, Mike Mansel, and Dave Tiedgen.
Finally, thanks to my small business clients, who are a constant source of knowledge and inspiration.
INTRODUCTION
A. Is This Book for You? ...................................................................................... I/2
B. How This Book Will Help ............................................................................... I/3
C. Nonlegal Matters to Attend To ........................................................................ I/6
CHAPTER 1
Which Legal Form Is Best for Your Business?
A. Sole Proprietorships ....................................................................................... 1/4
B. Partnerships ................................................................................................. 1/7
C. Corporations.............................................................................................. 1/11
D. Limited Liability Companies........................................................................... 1/21
E. Choosing Between a Corporation and an LLC ................................................. 1/23
F. Special Structures for Special Situations .......................................................... 1/26
CHAPTER 2
Structuring a Partnership Agreement
A. Why You Need a Written Agreement .............................................................. 2/2
B. An Overview of Your Partnership Agreement...................................................... 2/3
C. Changes in Your Partnership ......................................................................... 2/13
CHAPTER 3
Creating a Corporation
A. The Structure of a Corporation ........................................................................ 3/2
B. Financing Your Corporation............................................................................ 3/5
C. Compensating Yourself .................................................................................. 3/6
Table of Contents
D. Do You Need a Lawyer to Incorporate? ........................................................... 3/7
E. Overview of Incorporation Procedures .............................................................. 3/8
F. Twelve Basic Steps to Incorporate.................................................................... 3/8
G. After You Incorporate .................................................................................. 3/17
H. Safe Business Practices for Your Corporation ................................................... 3/17
CHAPTER 4
Creating a Limited Liability Company
A. Number of Members Required ........................................................................ 4/2
B. Management of an LLC ................................................................................. 4/3
C. Financing an LLC .......................................................................................... 4/3
D. Compensating Members ................................................................................ 4/5
E. Choosing a Name........................................................................................ 4/6
F. Paperwork for Setting Up an LLC ..................................................................... 4/7
G. After You Form Your LLC............................................................................... 4/11
H. Safe Business Practices for Your LLC ............................................................... 4/13
CHAPTER 5
Preparing for Ownership Changes With a Buy-Sell Agreement
A. Major Benefits of Adopting a Buy-Sell Agreement ............................................... 5/3
B. Where to Put Your Buy-Sell Provisions ............................................................... 5/7
C. When to Create a Buy-Sell Agreement ............................................................. 5/8
CHAPTER 6
Naming Your Business and Products
A. Business Names: An Overview ....................................................................... 6/4
B. Mandatory Name Procedures ......................................................................... 6/7
C. Trademarks and Service Marks ..................................................................... 6/10
D. Strong and Weak Trademarks ...................................................................... 6/11
E. How to Protect Your Trademark ..................................................................... 6/12
F. Name Searches ......................................................................................... 6/13
CHAPTER 7
Licenses and Permits
A. Federal Registrations and Licenses ................................................................... 7/3
B. State Requirements ........................................................................................ 7/4
C. Regional Requirements ................................................................................... 7/6
D. Local Requirements........................................................................................ 7/7
E. How to Deal With Local Building and Zoning Officials ....................................... 7/9
CHAPTER 8
Tax Basics for the Small Business
A. Employer Identification Number....................................................................... 8/2
B. Becoming an S Corporation ........................................................................... 8/6
C. Business Taxes in General .............................................................................. 8/7
D. Business Deductions .................................................................................... 8/14
E. Tax Audits ................................................................................................. 8/19
CHAPTER 9
Raising Money for Your Business
A. Two Types of Outside Financing...................................................................... 9/3
B. Thirteen Common Sources of Money ................................................................ 9/8
C. Document All Money You Receive ................................................................. 9/15
CHAPTER 10
Buying a Business
A. Finding a Business to Buy ............................................................................. 10/3
B. Whats the Structure of the Business You Want to Buy? ..................................... 10/4
C. Gathering Information About a Business .......................................................... 10/8
D. Valuing the Business .................................................................................... 10/9
E. Other Items to Investigate ........................................................................... 10/12
F. Letter of Intent to Purchase .......................................................................... 10/14
G. The Sales Agreement ................................................................................. 10/16
H. The Closing ............................................................................................. 10/25
I. Selling a Business ..................................................................................... 10/25
CHAPTER 11
Franchises: How Not to Get Burned
A. What Is a Franchise? .................................................................................. 11/3
B. The Downsides of Franchise Ownership.......................................................... 11/4
C. Investigating a Franchise .............................................................................. 11/8
D. The Uniform Franchise Offering Circular.......................................................... 11/9
E. The Franchise Agreement ........................................................................... 11/15
F. Resolving Disputes With Your Franchisor ....................................................... 11/19
CHAPTER 12
Insuring Your Business
A. Working With an Insurance Agent................................................................. 12/2
B. Property Coverage ...................................................................................... 12/4
C. Liability Insurance........................................................................................ 12/8
D. Other Insurance to Consider ....................................................................... 12/12
E. Saving Money on Insurance ....................................................................... 12/14
F. Making a Claim ....................................................................................... 12/17
CHAPTER 13
Negotiating a Favorable Lease
A. Finding a Place .......................................................................................... 13/3
B. Leases and Rental Agreements: An Overview................................................... 13/3
C. Short-Term Leases (Month-to-Month Rentals) ...................................................... 13/4
D. Written Long-Term Leases ............................................................................. 13/5
E. Additional Clauses to Consider ................................................................... 13/17
F. Shopping Center Leases ............................................................................ 13/18
G. How to Modify a Lease ............................................................................. 13/19
H. Landlord-Tenant Disputes ............................................................................ 13/19
I. Getting Out of a Lease .............................................................................. 13/21
J. When You Need Professional Help ............................................................. 13/22
CHAPTER 14
Home-Based Business
A. Zoning Laws .............................................................................................. 14/2
B. Private Land Use Restrictions ......................................................................... 14/7
C. Insurance .................................................................................................. 14/8
D. Deducting Expenses for Business Use of Your Home........................................ 14/10
CHAPTER 15
Employees and Independent Contractors
A. Hiring Employees ....................................................................................... 15/3
B. Job Descriptions.......................................................................................... 15/6
C. Job Advertisements ...................................................................................... 15/7
D. Job Applications ......................................................................................... 15/7
E. Interviews ................................................................................................ 15/11
F. Testing .................................................................................................... 15/11
G. Investigating Job Application Information ....................................................... 15/20
H. Immigration Law Requirements..................................................................... 15/22
I. Personnel Practices.................................................................................... 15/22
J. Illegal Discrimination ................................................................................. 15/23
K. Wages and Hours .................................................................................... 15/26
L. Occupational Safety and Health ................................................................. 15/29
M. Workers Compensation ........................................................................... 15/30
N. Termination............................................................................................. 15/31
O. Unemployment Compensation ..................................................................... 15/33
P. Independent Contractors ............................................................................ 15/34
CHAPTER 16
The Importance of Excellent Customer Relations
A. Developing Your Customer Satisfaction Policy .................................................. 16/3
B. Telling Customers About Your Policies............................................................. 16/5
CHAPTER 17
Legal Requirements for Dealing With Customers
A. Advertising ................................................................................................ 17/2
B. Retail Pricing and Return Practices .................................................................. 17/5
C. Warranties ................................................................................................ 17/9
D. Consumer Protection Statutes ...................................................................... 17/15
E. Dealing With Customers Online .................................................................. 17/16
CHAPTER 18
Cash, Credit Cards, and Checks
A. Cash ........................................................................................................ 18/2
B. Credit Cards.............................................................................................. 18/2
C. Checks ..................................................................................................... 18/4
CHAPTER 19
Extending Credit and Getting Paid
A. The Practical Side of Extending Credit ............................................................ 19/2
B. Laws That Regulate Consumer Credit.............................................................. 19/8
C. Becoming a Secured Creditor ....................................................................... 19/9
D. Collection Problems .................................................................................. 19/10
E. Collection Options .................................................................................... 19/14
CHAPTER 20
Put It in Writing: Small Business Contracts
A. What Makes a Valid Contract ...................................................................... 20/3
B. Unfair or Illegal Contracts............................................................................. 20/5
C. Misrepresentation, Duress, or Mistake ............................................................ 20/6
D. Must a Contract Be in Writing?..................................................................... 20/7
E. Writing Business-to-Business Contracts .......................................................... 20/10
F. The Formalities of Getting a Contract Signed ................................................. 20/14
G. Enforcing Contracts in Court ....................................................................... 20/17
H. What Can You Sue For?............................................................................ 20/19
CHAPTER 21
The Financially Troubled Business
A. Thinking Ahead to Protect Your Personal Assets ................................................ 21/2
B. Managing the Financially Troubled Business .................................................... 21/5
C. Seeking an Objective Analysis ...................................................................... 21/8
D. Workouts ................................................................................................ 21/10
E. Selling or Closing the Business .................................................................... 21/13
F. Understanding Bankruptcy .......................................................................... 21/15
CHAPTER 22
Resolving Legal Disputes
A. Negotiating a Settlement.............................................................................. 22/2
B. Understanding Mediation ............................................................................. 22/3
C. Arbitration ................................................................................................. 22/5
D. Going to Court........................................................................................... 22/8
CHAPTER 23
Representing Yourself in Small Claims Court
A. Deciding Whether to Represent Yourself ......................................................... 23/2
B. Learning the Rules ....................................................................................... 23/4
C. Meeting the Jurisdictional Limits ..................................................................... 23/4
D. Before You File Your Lawsuit ......................................................................... 23/6
E. Figuring Out Whom to Sue .......................................................................... 23/8
F. Handling Your Small Claims Court Lawsuit ...................................................... 23/8
G. Representing Yourself If Youre the Defendant ................................................. 23/11
H. Appealing Small Claims Decisions ............................................................... 23/12
I. Collecting Your Judgment ........................................................................... 23/12
CHAPTER 24
Lawyers and Legal Research
A. How to Find the Right Lawyer ....................................................................... 24/3
B. Fees and Bills............................................................................................. 24/5
C. Problems With Your Lawyer .......................................................................... 24/6
D. Do-It-Yourself Legal Research ......................................................................... 24/7
APPENDIX A
APPENDIX B
INDEX
I
Introduction: Using This Book to Start
or Run a Business
A. Is This Book for You? ...................................................................................... I/2
B. How This Book Will Help ............................................................................... I/3
1. Choosing the Best Legal Entity (Chapters 1 Through 5) .................................... I/3
2. Choosing Your Business and Product Names Wisely (Chapter 6) ...................... I/3
3. Obtaining License and Permits (Chapter 7) .................................................... I/3
4. Meeting the IRS Rules (Chapter 8)................................................................ I/3
5. Raising Money for Your Business (Chapter 9) ................................................. I/4
6. Alternatives to Starting From Scratch (Chapters 10 and 11) .............................. I/4
7. Buying Business Insurance (Chapter 12)........................................................ I/4
8. Finding Space for Your Business (Chapters 13 and 14) ................................... I/5
9. Hiring and Managing Employees (Chapter 15) ............................................. I/5
10. Dealing With Customers (Chapters 16 Through 19) ....................................... I/5
11. Entering Into Contracts (Chapter 20) ............................................................ I/5
12. When Trouble Comes (Chapters 21 Through 24)........................................... I/5
C. Nonlegal Matters to Attend To ......................................................................... I/6
1. Choose the Right Business for You ............................................................... I/6
2. Do a Break-Even Analysis ........................................................................... I/7
3. Consider Writing a Business Plan ................................................................ I/8
INTRODUCTION/2 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
S
tarting and running a small business—one
that’s both profitable and emotionally satisfy-
ing—is a dream that you share with millions of
other Americans. Being an entrepreneur offers re-
wards of many sorts: the opportunity to spread your
wings and use your natural talents, the freedom of
being your own boss, the possibility of huge finan-
cial success, and more. And in an era when job se-
curity is a relic of a bygone era, owning a business
means you never have to worry about being fired
or outsourced.
Of course, nothing this exciting ever comes with-
out risk. Demographic changes, recessions, chang-
ing tastes and styles, new technologies—any of
these factors can challenge even the most astute
and experienced businessperson. There’s no guar-
antee that any venture will succeed. But the positive
side of being self-employed often outweighs the po-
tential risks. That’s especially true if you have confi-
dence in your own judgment and abilities. You
stand to earn more money than you ever have be-
fore—and to achieve a high level of self-fulfillment.
In a November 2004 Wall Street Journal survey, 86%
of small business owners said they’d do it all over
again, and 76% said they believe they’re better off
financially than if they’d worked for another com-
pany.
What’s more, the existence of risk doesn’t mean
you’re helpless in the hands of the fates. You can
greatly increase the chances of success by working
hard and planning carefully. In particular, knowing
how the law affects your business can help you
avoid many costly risks. More and more, the law
affects every aspect of a small business operation,
from relationships with landlords, customers, and
suppliers to dealings with governmental agencies
over taxes, licenses, and zoning. That’s where this
book comes in.
For starters, this book will help you take key
preventive measures that will dramatically cut the
number of expensive visits you’d otherwise make to
a lawyer’s office. You’ll know exactly where you
may be vulnerable to lawsuits so you can wisely
take steps to reduce the risks. And you’ll know
when it makes sense to call in a lawyer or a tax pro
for special assistance so that small problems don’t
turn into huge ones.
This book uses plain English to cover all the ma-
jor legal issues that a business is likely to face, in-
cluding:
Will I be personally liable for business debts?
How is business income taxed?
Does it make sense for me to form a corpora-
tion? How about an LLC?
How can I protect my business name?
Do I need a license or permit?
What forms do I need to file with the IRS?
How do I raise money for my business?
What are the steps in buying an existing busi-
ness?
Is buying a franchise a good idea?
What kind of insurance should I carry?
How do I negotiate a lease?
Will zoning affect my home-based business?
What’s the best way to avoid being sued by
employees—or former employees?
This book provides easy-to-follow answers to
these and dozens of other legal questions so that
you can spend your time on what really counts:
running a sound and successful business.
A. Is This Book for You?
This book focuses on starting and running a small
business. Though much of what you learn here will
also apply to larger enterprises, this book definitely
is not concerned with the sorts of businesses that
make headlines in The Wall Street Journal. We’re
focused on readers who fit this profile:
You’re looking to start (or buy) a small retail,
service, or manufacturing business—for ex-
ample, a restaurant or bakery, a dry cleaning
establishment, a crafts gallery, an electrical
contracting firm, or a modest manufacturing
operation.
INTRODUCTION/3
You anticipate owning the business yourself,
or with one, two, or a handful of other
people.
You’d consider setting up a corporation or
LLC if doing so would be legally advanta-
geous.
You plan to play an active role in running the
business—and perhaps even expect that it
will provide your main source of income.
Does this sound like you? If it does, then this
book has exactly the information you need to take
the right legal steps and guard against lawsuits and
other unexpected consequences.
B. How This Book Will Help
This book guides you through the many legal con-
cepts and procedures that affect a small business.
Here’s a preview of what lies ahead.
1. Choosing the Best Legal Entity
(Chapters 1 Through 5)
We start with the pros and cons of the types of le-
gal entities used by small businesses—the sole pro-
prietorship, the partnership, the limited liability
company (LLC), and the corporation. You’ll learn
how each type of entity treats your personal liability
for business debts. For example, can business credi-
tors or lawsuit plaintiffs seize your house and per-
sonal bank accounts if the business falls on hard
times? And you’ll learn just how each entity gets
taxed. For tax reasons, you may decide you’d prefer
to have an S corporation rather a C corporation. (If
these terms seem like a foreign language to you,
don’t worry. We’ll get to them soon.)
Once you understand the differences between
the basic legal entities, and have chosen one for
your business, you’ll go to a chapter that tells you
how to create the entity—the documents you need
to prepare and sign and, in some cases, register
with a government agency. And if you decide to
form a corporation or LLC, you’ll find time-tested
tips for using the entity to the maximum extent pos-
sible to shield your home and other personal assets
from business creditors.
If you aren’t the only owner of your business, be
sure to spend time with Chapter 5, which explains
how to lay the groundwork for ownership changes
with what’s called a “buy-sell agreement.”
2. Choosing Your Business and
Product Names Wisely (Chapter 6)
You may already have a clever name for your busi-
ness or product in mind. But don’t start using it un-
til you’re sure you won’t step on the toes of existing
businesses. This chapter will explain how to re-
search whether other businesses are using the
names you’re considering, register and protect the
names you choose, obtain an Internet address
(URL), and more.
3. Obtaining License and Permits
(Chapter 7)
Chances are good that your business needs some
sort of license or operating permit, whether from
your federal, state, regional, county, or city govern-
ment. Chapter 7 will alert you to types of businesses
or activities that normally need licenses or permits,
and explain where to go for details.
4. Meeting the IRS Rules (Chapter 8)
If the only tax return you’ve ever filed is the familiar
Form 1040, you’re nowhere near prepared for the
complexities of business taxes. But with the help of
this book, the task should be easier than you’d ex-
pect. You’ll learn how to apply for an Employer
Identification Number (which your business may
need even if it doesn’t have employees at first).
INTRODUCTION/4 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
You’ll find out, too, whether your business must
pay income tax to the IRS, or whether you and any
other business owners will personally bear the tax
burden. In either case, you’ll discover which tax
forms to file and why. And since business deduc-
tions are always a good thing—they reduce the bot-
tom line on which taxes are computed—you’ll ap-
preciate learning the ins and outs of deductions and
depreciation.
Maybe you’ve never been audited before—but
your luck may run out if you own a small business.
The IRS views small businesses as an attractive au-
dit target. So you’ll find it comforting to learn how
to deal with the IRS if your business does get au-
dited. Knowing what to expect can reduce your
anxiety and help you successfully complete the au-
dit process.
5. Raising Money for Your
Business (Chapter 9)
We’ll cover in detail the two main ways to get
money for setting up or expanding your business:
loans and equity financing. (Most entrepreneurs
prefer, if possible, to take out loans, so they can
keep the business ownership all to themselves; eq-
uity financing involves shared ownership.) You’ll
find out where to look for money and how to cre-
ate legal safeguards so that your interests are ad-
equately protected. And you’ll also learn about the
protections that lenders and investors might seek
for themselves.
Finally, if you think a bank is the only place to
get money, you’ll be pleased to discover that a
number of other excellent sources are available.
This is especially important for first-time business
owners, given that banks are understandably reluc-
tant to lend money to would-be entrepreneurs with
no track record.
6. Alternatives to Starting From
Scratch (Chapters 10 and 11)
While this book discusses many aspects of starting a
business from scratch, we haven’t forgotten that it’s
not the only way to go. Other options include buy-
ing an existing business or buying a franchise.
Buying an existing business is often an attractive
choice because someone else has done the hard
startup work. And the business has a financial his-
tory—you can tell whether it’s has been successful
so far. If so, you can be reasonably sure that it will
continue to be profitable. But you may have to pay
more for an existing business, since the seller will
want to be rewarded for taking the startup risks.
Buying a franchise can also be tempting—but, as
Chapter 11 will explain, you’ll need to be aware of
many hidden problems. You’ll probably be asked to
sign a long-term contract with terms that heavily
favor the franchisor. Of course, it’s true that once in
business, you’ll get the benefit of the franchisor’s
advertising and brand name. But offsetting this ad-
vantage, you’ll be locked into a more-or-less rigid
format for running the business—something that a
freedom-loving entrepreneur may balk at.
7. Buying Business Insurance
(Chapter 12)
Avoiding risk is a major theme of this book—and
when it comes to the biggest risks, such as fire, in-
jured customers, or lawsuits stemming from your
own negligence, having an insurance policy in
place can save you a bundle. On the other hand,
you don’t need to go hog wild buying insurance
policies. This chapter will help you evaluate what
insurance you do and don’t need, and how to go
about getting it at a reasonable price.
INTRODUCTION/5
8. Finding Space for Your Business
(Chapters 13 and 14)
Unless you sit in a coffee shop and conduct a Web-
based business from your laptop, you’ll probably
have to think about where to locate your business.
Chapter 13 discusses renting business space. You’ll
learn how to read the landlord’s lease form and ne-
gotiate for more favorable terms. You’ll be better
prepared to avoid hidden costs and arbitrary actions
by a landlord.
Chapter 14 discusses the ins and outs of running
a business out of your own home. You’ll find out
how to comply with zoning ordinances, and see
how the tax laws let you deduct some repair, utility,
and other expenses associated with your home.
9. Hiring and Managing
Employees (Chapter 15)
Even if you start out running the business yourself,
sooner or later you’ll probably need to hire employ-
ees. This can be one of the most legally challenging
tasks you’ll face. Federal and state laws regulate al-
most every aspect of the employment relationship.
You’ll need to know about wages and overtime
pay, workers compensation, immigration law re-
quirements, and numerous antidiscrimination laws
such the Americans with Disabilities Act.
Even if you do everything right, you may eventu-
ally have to fire an employee. Termination can be a
very delicate matter if you wish to avoid being sued
for wrongful discharge. The information in this
book will introduce you to safe hiring and firing
practices so that you’ll sleep better at night.
10. Dealing With Customers
(Chapters 16 Through 19)
There’s nothing so joyful as watching your first cus-
tomers walk in the door. And there’s nothing so
frustrating and frightening as having them fail to
pay their bills, sue you out of disgruntlement with
your products or services, or complain about you to
all their friends. Fortunately, many of these issues
can be avoided—or at least prepared for—by devel-
oping customer policies that are friendly as well as
legally sound. Chapters 16 through 19 will help you
do this, with explanations of such issues as advertis-
ing, warranties, accepting payment by different
methods, and extending credit.
11. Entering Into Contracts
(Chapter 20)
Whether you’re making agreements with customers
or other businesses, chances are you’ll want to com-
mit some of these to writing. In this chapter, you’ll
learn what makes a valid contract, how to write a
contract that will hold up legally, and when you can
sue someone for breaching your contract.
12. When Trouble Comes (Chapters
21 Through 24)
Despite your best efforts, your business may run
into financial trouble. Chapter 21 will help you turn
your financially troubled business around, and if
that’s impossible, sell or close your business. Chap-
ter 22 will teach you how to use tools like media-
tion or the court system to resolve legal disputes.
Because many business disputes involve only a few
thousand dollars (not enough to hire a lawyer for)
we devote all of Chapter 23 to representing yourself
in small claims court. However, if you do need a
lawyer, see Chapter 24 on how to find the right one
and make the most of your relationship.
INTRODUCTION/6 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
C. Nonlegal Matters to
Attend To
Dealing effectively with legal matters—the focus of
this book—is a key component of running a suc-
cessful business. But before you start a business or
buy one, there are also a number of important prac-
tical and financial matters that need your attention.
Here, we’ll briefly review the most important ones,
and direct you to other relevant resources for help.
1. Choose the Right Business
for You
Your business should have a solid chance at turning
a profit—but it should also suit your particular skills
and strengths. It helps to start or buy a business that
you know intimately—one that matches your expe-
rience, training, talents, and, hopefully, your pas-
sions. To put it bluntly, don’t open a garden-supply
shop unless you have a green thumb and are up to
date on the state of the art in gardening products.
Still Tempted to Sell Something
You Know Nothing About?
You wouldn’t be the first businessperson to
attempt a stretch beyond your own knowledge
base. Many people have been lured by watch-
ing others make quick profits at say, “the latest
thing.” And some folks have plunged ahead
rashly after waking up with a “million-dollar”
idea or just a yen to do something new and
unusual. You’ll see headlines about the people
who make it—but these obscure the stories of
the thousands of enthusiastic but unprepared
dreamers whose businesses crashed and
burned.
If you’re still inclined to leap into largely
unknown territory, at least take steps to ex-
pand your knowledge before you proceed.
Your best bet is often to become an employee
in a similar business—even for free, if no one
will pay a novice like you. From that insider’s
position, you stand to learn about every aspect
of the business. And you’ll soon find out
whether you enjoy that line of work. If not,
move on to something else.
Assuming you’re thinking of making a business
out of something you know and love, the next step
is to talk to others in the industry to learn what it
takes to run that kind of business. Learn all you can
about startup costs, overhead and expenses, and
how much revenue you can expect to take in.
Maybe you have several interests and are not sure
which business would work out the best. You can
research the marketplace to see which types of
businesses are most needed in your community.
Judge your ability and desire to handle every as-
pect of the business. If you want to become the mil-
lionaire next door, you have to be willing and able
to handle many diverse chores—such as dealing
with customers, keeping the books, and even flip-
INTRODUCTION/7
ping the burgers when your employees are out sick.
Although employees can ordinarily handle many of
the day-to-day operations, you may have to person-
ally pitch in more often than you might imagine. If
this is a turnoff, another business may suit you bet-
ter.
Some businesses require extra caution. For ex-
ample, there are inherent risks in businesses that
use hazardous materials, make edible goods, care
for children, sell alcohol, or build or repair build-
ings or vehicles. But you can usually reduce the
risks to manageable proportions by forming a cor-
poration or LLC, and by carrying adequate liability
insurance.
2. Do a Break-Even Analysis
No one can tell for sure whether a particular busi-
ness idea will be profitable. You can, however,
make an informed judgment by doing what’s called
a “break-even analysis.” This shows you how much
money you’ll need to bring in to cover your ex-
penses, even before you make a dime of profit. You
don’t want to start or buy a business unless you’re
reasonably sure that sales will far exceed your costs
of doing business.
To perform a break-even analysis, you’ll have to
make educated guesses about your expenses and
revenues. This requires some preliminary research.
To make the job easier, take advantage of business
planning books and software, as well as the free
Web resources listed below.
Here are the most important facts and figures
you’ll need to assemble for your break-even analy-
sis:
Fixed costs. These costs—sometimes called
“overhead”—stay pretty much the same from
month to month. They include rent, insur-
ance, utilities, and other expenses that must
be paid regardless of how much you produce
or sell. Be sure to add another 10% to cover
unexpected fluctuations in these costs, such
as a boost in insurance premiums or the price
of natural gas to heat your business premises.
Sales revenue. This is the total amount the
business brings in each month or year. Be re-
alistic in figuring the volume of business you
can expect. You’ll need to specifically identify
your customer base, then do some demo-
graphic research to find out how many
people who fit that profile you can expect to
reach and attract.
Average gross profit for each sale. This is
how much you earn from each sale after pay-
ing the direct costs of the sale. For example,
if you pay an average of $200 for each bi-
cycle that you sell at an average price tag of
$300, your average gross profit per sale is
$100.
Average gross profit percentage. This tells
you how much of each dollar of sales income
is gross profit. You divide your average gross
profit (from above) by the average selling
price. In the bicycle example, the gross profit
percentage is 66.7% ($200 divided by $300).
Now you’re ready to figure out the break-even
point. Divide your estimated fixed costs total by
your gross profit percentage. This tells you the
amount of sales revenue you’ll need to bring in just
to break even. For example, if your fixed costs are
$6,000 a month and your expected profit margin is
66.7%, your break-even point is $9,000 in sales rev-
enue per month ($6,000 divided by .667). This
means you must make take in $9,000 each month
just to pay your fixed costs and your direct (prod-
uct) costs. At the break-even point, there’s no salary
or profit for you.
If your break-even point is higher than your ex-
pected revenues, you’ll need to figure out whether
you can change your plan to make the numbers
work better. For example, can you: Find a less ex-
pensive source of supplies? Do without an em-
ployee? Save rent by doing business out of your
home? Sell your product or service at a higher
price?
INTRODUCTION/8 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
If you can work out a realistic break-even point
that gives you reasonable assurance of earning a
decent profit, you can move ahead with a more de-
tailed business plan. Otherwise, you’ll need to come
up with a different business idea.
Want more information on researching and
developing your break-even analysis? Check
the following Websites:
www.businessknowhow.com/startup/break-
even.htm
www.toolkit.cch.com/text/P06_7530.asp
www.businesstown.com/accounting/projec-
tions-breakeven.asp.
3. Consider Writing a Business
Plan
You may find it useful to capture your thinking
about your business in a written business plan. If
you need to raise money to start your business, a
written plan will make it easier to explain your vi-
sion to lenders or investors. And even if you al-
ready have enough seed money, a written business
plan can be a good idea. Putting your thoughts
down on paper can help you fine tune your con-
cept and spot any trouble areas.
Many excellent books are available to guide you,
including How to Write a Business Plan, by Mike
McKeever (Nolo), and The Successful Business Plan:
Secrets and Strategies, by Rhonda Abrams (The
Planning Shop). For software, Business Plan Pro, by
Palo Alto software, comes very highly rated. Also,
several websites offer practical suggestions and pro-
vide sample plans. You might start with the U.S.
Small Business Administration site at www.sba.gov/
starting_business/planning/writingplan.html, where
you’ll find advice and, through a link, can review
dozens of real business plans.
But whatever source you turn to for ideas for
writing a business plan, keep in mind that a short,
simple plan is usually better than a long, complex
one—especially for a small business that’s just start-
ing out. Formality can get in the way. One good ap-
proach to the task is to imagine that you’re sitting
across a table from a friend and want to take a few
minutes to explain your business idea. What are the
key things you’d say? What kind of language would
you use? Try to capture that clear, conversational
tone in your written plan.
There are many ways to organize your business
plan. But however you decide you do it, you’ll
probably want to cover four main areas.
a. A Description of Your Business
Start with the business name and your Internet do-
main name, if you already have one. Then specify
the products and services you plan to sell, and tell
how your business will meet the needs of custom-
ers and clients. You can also describe where your
business will be physically located—in rented,
downtown space, for example, or in your home. It’s
also important to analyze the competition you’ll
face and why you think your business will survive
and thrive despite it. This part of the plan is also
the place to describe any demographic, economic,
and industry trends that you believe will help the
business get off to a good start.
b. Your Marketing Program
Here, you can set down your thoughts on who your
customers and clients will be, and how they’ll learn
about your new business and be motivated to give
it a try. First, you’ll need to develop a profile of
your typical customer. For example, if you’re plan-
ning to start a self-storage facility, your customers
may be apartment dwellers from nearby apartment
complexes who lack sufficient closet space. Or if
you’re starting a landscaping service, your target cli-
ents may be people who are buying homes in new,
suburban subdivisions. Once you have a good no-
INTRODUCTION/9
tion of the kind of customers you’d like to reach,
think about the methods you’ll use.
It’s said that word of mouth is the best way for a
business to build a loyal following, but that takes
time. With a brand-new business, you’ll have to
prime the pump. There are lots of ways you might
do this. Traditional advertising in newspapers and
on radio or television is just the tip of the iceberg.
Among other things, you might consider news-
letters; direct mail; a website linked to high-traffic
sites; trade show exhibits; billboards; the Yellow
Pages; discount coupons; event sponsorship; free
classes; telemarketing; and favorable press reports.
Many businesses use the sides of their vans and
trucks to capture people’s attention. (For more on
advertising and marketing, see Chapters 16 and 17.)
c. How You’ll Operate the Business
A key concern here is the competence of those who
will be running the business. Be sure to include
your own qualifications and those of any co-owners
and managers in any plan that you’ll be showing to
others. List past business experience and any em-
ployment or training that’s relevant to your new
business. If a small business is organized as a cor-
poration, then most likely the owners will be the
board of directors. But if you’ll have some outsiders
serving on the board, you can name them here and
give their qualifications. And consider naming your
professional team—a lawyer and accountant whom
you may consult from time to time.
You might also mention the number of employ-
ees—full-time and part-time—you expect to hire at
the beginning, and give some idea of what their
jobs will consist of. If you’ll rely on independent
contractors for some work, you can spell out their
duties.
In addition to describing the business’s work-
force, it’s often worth describing other aspects of
your business operations, such as any special
equipment you’ll be using and your arrangements
with suppliers. You might also describe any im-
provements you’ll be making to the premises the
business will occupy—usually rented space for a
new business. If you already have some contracts
lined up with customers or clients, that’s great be-
cause you have a running head start. It makes sense
to mention these in your business plan.
For many businesses, order fulfillment and cus-
tomer service play a major role. Your business plan
can explain how your business intends to handle
these functions—hopefully in a way that will keep
customers happy and coming back for more.
d. The Financial Highlights
Here, you should list your fixed costs and your esti-
mates for other costs, and how much you’ll need in
startup funds—that is, funds to buy needed equip-
ment, supplies, and inventory, with enough cash
left in the till to cover other bills until adequate
money starts rolling in (which may take several
months). Explain where the startup funds will come
from: your own funds on hand, or loans or cash
from investors. Be sure to include your break-even
analysis, too (see Section 2, above).
Probably the most difficult part of the financial
highlights portion of your business plan will be
your projections for gross income for the first three
years. When you start a business from scratch, this
is a largely unknown number. At best you’ll be
making a rough approximation. It’s better to esti-
mate on the low side and be pleasantly surprised if
the income exceeds your expectations. If you esti-
mate too high and it turns out there’s not enough
income to meet expenses, the business will struggle
to stay alive and may ultimately fail. To be as accu-
rate as possible in projecting revenues, you’ll need
to rely on your business acumen, information from
multiple industry sources, and perhaps input from
an accountant or other business consultant. With
careful preparation, you can significantly reduce the
risk that your income forecast will be far too high.
INTRODUCTION/10 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
ICONS
Throughout the book, these icons alert you to certain information.
Fast Track
We use this icon to let you know when you
can skip information that may not be relevant to
your situation.
Warning
This icon alerts you to potential problems.
Recommended Reading
When you see this icon, a list of additional
resources that can assist you follows.
Cross-Reference
This icon refers you to a further discussion
of the topic elsewhere in this book.
See an Expert
Lets you know when you need the advice
of an attorney or other expert.
Tip
A legal or commonsense tip to help you
understand or comply with legal requirements.
Recommended Forms
This icon refers you to a related chapter in
Legal Forms for Starting & Running a Small Busi-
ness, by Fred S. Steingold (Nolo), which contains le-
gal forms and checklists.
CHAPTER
1
Which Legal Form Is Best for Your Business?
A. Sole Proprietorships ....................................................................................... 1/4
1. Personal Liability ...................................................................................... 1/4
2. Income Taxes .......................................................................................... 1/5
3. Fringe Benefits ........................................................................................ 1/5
4. Routine Business Expenses ......................................................................... 1/7
B. Partnerships ................................................................................................. 1/7
1. Personal Liability ...................................................................................... 1/8
2. Partners Rights and Responsibilities ............................................................. 1/9
3. Income Taxes ........................................................................................ 1/10
4. Fringe Benefits and Business Expenses ....................................................... 1/10
C. Corporations.............................................................................................. 1/11
1. Limited Personal Liability .......................................................................... 1/11
2. Income Taxes ........................................................................................ 1/13
3. Attracting Investors ................................................................................. 1/19
D. Limited Liability Companies........................................................................... 1/21
1. Limited Personal Liability .......................................................................... 1/21
2. Number of Owners ................................................................................ 1/22
3. Tax Flexibility ........................................................................................ 1/22
4. Flexible Management Structure................................................................. 1/22
5. Flexible Distribution of Profits and Losses .................................................... 1/23
E. Choosing Between a Corporation and an LLC ................................................. 1/23
F. Special Structures for Special Situations .......................................................... 1/26
1. Limited Partnerships ................................................................................ 1/26
2. Choices for Professionals ........................................................................ 1/27
3. Nonprofit Corporations........................................................................... 1/30
4. Cooperatives and Cooperative-Type Organizations ..................................... 1/31
1/2 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
W
hen you start a business, you must decide
on a legal structure for it. Usually you’ll
choose either a sole proprietorship, a part-
nership, a limited liability company (LLC), or a cor-
poration. There’s no right or wrong choice that fits
everyone. Your job is to understand how each legal
structure works and then pick the one that best
meets your needs.
The best choice isn’t always obvious. After read-
ing this chapter, you may decide to seek some
guidance from a lawyer or an accountant.
For many small businesses, the best initial choice
is either a sole proprietorship or—if more than one
owner is involved—a partnership. Either of these
structures makes especially good sense in a busi-
ness where personal liability isn’t a big worry—for
example, a small service business in which you are
unlikely to be sued and for which you won’t be
borrowing much money. Sole proprietorships and
partnerships are relatively simple and inexpensive
to establish and maintain.
Forming an LLC or a corporation is more compli-
cated and costly, but it’s worth it for some small busi-
nesses. The main feature of LLCs and corporations
that attracts small businesses is the limit they provide
on their owners’ personal liability for business debts
and court judgments against the business. Another
factor might be income taxes: You can set up an LLC
or a corporation in a way that lets you enjoy more
favorable tax rates. In certain circumstances, your
business may be able to stash away earnings at a
relatively low tax rate. In addition, an LLC or corpo-
ration may be able to provide a range of fringe ben-
efits to employees (including the owners) and deduct
the cost as a business expense.
Given the choice between creating an LLC or a
corporation, many small business owners will be bet-
ter off going the LLC route. For one thing, if your
business will have several owners, the LLC can be
more flexible than a corporation in the way you can
parcel out profits and management duties. Also, set-
ting up and maintaining an LLC can be a bit less
complicated and expensive than a corporation. But
there may be times a corporation will be more ben-
eficial. For example, because a corporation—unlike
other types of business entities—issues stock certifi-
cates to its owners, a corporation can be an ideal ve-
hicle if you want to bring in outside investors or re-
ward loyal employees with stock options.
Keep in mind that your initial choice of a busi-
ness form doesn’t have to be permanent. You can
start out as sole proprietorship or partnership and,
later, if your business grows or the risks of personal
liability increase, you can convert your business to
an LLC or a corporation.
For some small business owners, a less
common type of business structure may
be appropriate. While most small businesses will
find at least one good choice among the four basic
business formats described above, a handful will
have special situations in which a different format is
required or at least is desirable. For example, a pair
of dentists looking to limit their personal liability
may need to set up a professional corporation (PC)
or a professional limited liability company (PLLC). A
group of real estate investors may find that a limited
partnership is the best vehicle for them. These and
other special types of business organizations are
summarized in Section F at the end of this chapter.
You may need professional advice in
choosing the best entity for your business.
This chapter gives you a great deal of information to
assist you in deciding how to best organize your
business. Obviously, however, it’s impossible to cover
every relevant nuance of tax and business law—es-
pecially if your business has several owners with dif-
ferent and complex tax situations. And for busi-
nesses owned by several people who have different
personal tax situations, sorting out the effects of
“pass-through” taxation (where partners and most
LLC members are taxed on their personal tax returns
for their share of business profits and losses) is no
picnic, even for seasoned tax pros. The bottom line is
that unless your business will start small and have a
very simple ownership structure, before you make
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/3
TYPE OF ENTITY
Sole Proprietorship
(Section A)
General Partnership
(Section B)
Limited Partnership
(Section F)
Regular Corporation
(Section C)
S Corporation
(Section C)
Professional Corporation
(Section F)
Nonprofit Corporation
(Section F)
Limited Liability Company
(Section D)
Professional Limited
Liability Company
(Section F)
Limited Liability
Partnership
(Section F)
MAIN ADVANTAGES
Simple and inexpensive to create and operate
Owner reports profit or loss on his or her
personal tax return
Simple and inexpensive to create and operate
Owners (partners) report their share of profit
or loss on their personal tax returns
Limited partners have limited personal liability
for business debts as long as they don’t participate
in management
General partners can raise cash without involving
outside investors in management of business
Owners have limited personal liability for
business debts
Fringe benefits can be deducted as business expense
Owners can split corporate profit among owners
and corporation, paying lower overall tax rate
Owners have limited personal liability for
business debts
Owners report their share of corporate profit
or loss on their personal tax returns
Owners can use corporate loss to offset income
from other sources
Owners have no personal liability for malpractice
of other owners
Corporation doesn’t pay income taxes
Contributions to charitable corporation are
tax-deductible
Fringe benefits can be deducted as business expense
Owners have limited personal liability for business
debts even if they participate in management
Profit and loss can be allocated differently than
ownership interests
IRS rules allow LLCs to choose between being
taxed as partnership or corporation
Same advantages as a regular limited liability company
Gives state licensed professionals a way to enjoy those
advantages
Mostly of interest to partners in old-line professions
such as law, medicine, and accounting
Owners (partners) aren’t personally liable for the
malpractice of other partners
Owners report their share of profit or loss on their
personal tax returns
MAIN DRAWBACKS
Owner personally liable for business debts
Owners (partners) personally liable for business debts
General partners personally liable for business debts
More expensive to create than general partnership
Suitable mainly for companies that invest in real estate
More expensive to create than partnership or sole proprietorship
Paperwork can seem burdensome to some owners
Separate taxable entity
More expensive to create than partnership or sole proprietorship
More paperwork than for a limited liability company, which offers
similar advantages
Income must be allocated to owners according to their
ownership interests
Fringe benefits limited for owners who own more than
2% of shares
More expensive to create than partnership or sole proprietorship
Paperwork can seem burdensome to some owners
All owners must belong to the same profession
Full tax advantages available only to groups organized for
charitable, scientific, educational, literary, or religious purposes
Property transferred to corporation stays there; if corporation
ends, property must go to another nonprofit
More expensive to create than partnership or sole proprietorship
State laws for creating LLCs may not reflect latest federal
tax changes
Same as for a regular limited liability company
Members must all belong to the same profession
Unlike a limited liability company or a professional limited
liability company, owners (partners) remain personally liable
for many types of obligations owed to business creditors,
lenders, and landlords
Not available in all states
Often limited to a short list of professions
WAYS TO ORGANIZE YOUR BUSINESS
1/4 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
your final decision on a business entity, check with
a tax advisor after learning about the basic at-
tributes of each type of business structure (from this
chapter and Chapters 2, 3, and 4).
A. Sole Proprietorships
The simplest form of business entity is the sole pro-
prietorship. If you choose this legal structure, then
legally speaking you and the business are the same.
You can continue operating as a sole proprietor as
long as you’re the only owner of the business.
Establishing a sole proprietorship is cheap and
relatively uncomplicated. While you do not have to
file articles of incorporation or organization (as you
would with a corporation or an LLC), you may have
to obtain a business license to do business under
state laws or local ordinances. States differ on the
amount of licensing required. In California, for ex-
ample, almost all businesses need a business li-
cense, which is available to anyone for a small fee.
In other states, business licenses are the exception
rather than the rule. But most states do require a
sales tax license or permit for all retail businesses.
Dealing with these routine licensing requirements
generally involves little time or expense. However,
many specialized businesses—such as an asbestos
removal service or a restaurant that serves liquor—
require additional licenses, which may be harder to
qualify for. (See Chapter 7 for more on this subject.)
In addition, if you’re going to conduct your busi-
ness under a trade name such as Smith Furniture
Store rather than John Smith, you’ll have to file an
assumed name or fictitious name certificate at a lo-
cal or state public office. This is so people who deal
with your business will know who the real owner
is. (See Chapter 6 for more on business names.)
From an income tax standpoint, a sole propri-
etorship and its owner are treated as a single entity.
Business income and business losses are reported
on your own federal tax return (Form 1040, Sched-
ule C). If you have a business loss, you may be able
to use it to offset income that you receive from
other sources. (For more tax basics, see Chapter 8.)
Legal Forms for Starting & Running a
Small Business
contains a checklist for start-
ing a sole proprietorship.
1. Personal Liability
A potential disadvantage of doing business as a sole
proprietor is that you have unlimited personal liabil-
ity on all business debts and court judgments re-
lated to your business.
EXAMPLE 1: Lester is the sole proprietor of a
small manufacturing business. Believing that his
business’s prospects look good, he orders
$50,000 worth of supplies and uses them up.
Unfortunately, there’s a sudden drop in demand
for his products, and Lester can’t sell the items
he’s produced. When the company that sold
Lester the supplies demands payment, he can’t
pay the bill.
As sole proprietor, Lester is personally li-
able for this business obligation. This means
that the creditor can sue him and go after not
only Lester’s business assets, but his other prop-
erty as well. This can include his house, his car,
and his personal bank account.
EXAMPLE 2: Shirley is the sole proprietor of a
flower shop. One day Roger, one of Shirley’s
employees, is delivering flowers using a truck
owned by the business. Roger strikes and seri-
ously injures a pedestrian. The injured pedes-
trian sues Roger, claiming that he drove care-
lessly and caused the accident. The lawsuit
names Shirley as a codefendant. After a trial,
the jury returns a large verdict against Roger—
and Shirley as owner of the business. Shirley is
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/5
personally liable to the injured pedestrian. This
means the pedestrian can go after all of
Shirley’s assets, business and personal.
One of the major reasons to form a corporation
or a limited liability company (LLC) is that, in theory
at least, you’ll avoid most personal liability. (But see
Chapter 12, Section C, for a discussion of how a
good liability insurance policy may be enough pro-
tection against personal liability for a sole propri-
etor.)
2. Income Taxes
As a sole proprietor, you and your business are one
entity for income tax purposes. The profits of your
business are taxed to you in the year that the busi-
ness makes them, whether or not you remove the
money from the business (called “flow-through”
taxation, because the profits “flow through” to the
owner’s income tax return). You report business
profits on Schedule C of Form 1040.
By contrast, if you form an LLC or a corporation,
you have a choice of two different types of tax
treatment.
Flow-Through Taxation. One choice is to
have the IRS tax your LLC or corporation like
a sole proprietorship or partnership (dis-
cussed above). The owners report their share
of LLC or corporate profits on their own tax
returns, whether or not the money has been
distributed to them.
Entity Taxation. The other choice is to make
the business a separate entity for income tax
purposes. If you form an LLC and make that
choice, the LLC will pay its own taxes on the
profits of the LLC. And as a member of the
LLC, you won’t pay tax on the money earned
by the LLC until you receive payments as
compensation for services or as dividends.
Similarly, if you form a corporation and
choose this option, you as a shareholder
won’t pay tax on the money earned by the
corporation until you receive payments as
compensation for services or as dividends.
The corporation will pay its own taxes on the
corporate profits.
In Section E of this chapter, I’ll explain the me-
chanics of choosing between these two methods.
For now, just be aware that this tax flexibility of
LLCs and corporations offers some tax advantages
over a sole proprietorship if you’re able to leave
some income in the business as “retained earnings.”
For example, suppose you want to build up a re-
serve to buy new equipment or your small label-
manufacturing company accumulates valuable in-
ventory as it expands. In either case, you might
want to leave $50,000 of profits or assets in the
business at the end of the year. If you operated as a
sole proprietor, those “retained” profits would be
taxed on your personal income tax return at your
marginal tax rate. But with an LLC or corporation
that’s taxed as a separate entity, the tax rate will al-
most certainly be lower.
You can share ownership of your
business with your spouse and still main-
tain its status as a sole proprietorship.
If you
choose to do this, in the eyes of the IRS you’ll be co-
sole proprietors. You can either split the profits from
your business if you and your spouse file separate
returns (and separate Schedule Cs), or you can put
them on your joint Schedule C if you file a joint re-
turn. Only a spouse can be a co-sole proprietor. If
any other family member shares ownership with
you, the business must be organized as a partner-
ship, corporation, or limited liability company.
3. Fringe Benefits
If you operate your business as a sole proprietor-
ship, tax-sheltered retirement programs are available.
A Keogh plan, for example, allows a sole proprietor
to salt away a substantial amount of income free of
current taxes. So does a one-person 401(k). You
can’t really do any better by setting up an LLC or a
corporation.
1/6 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
A “C” corporation or an LLC that chooses to be
taxed as a separate entity does have an advantage
when it comes to medical expenses for the owner
and his or her spouse and dependents. As a sole
proprietor, you are limited as to how much you can
deduct for medical expenses on your personal tax
return: You can deduct only the amount that ex-
ceeds 7.5% of your adjusted gross income for the
year. If you form an LLC or a corporation, however,
and choose to have it taxed as a separate entity,
you can have your business pay all of your family’s
medical expenses (so long as they’re not covered
by insurance) and then take these amounts as a
business deduction. You won’t be personally taxed
for the value of this employment benefit.
In the past, sole proprietors could deduct only a
portion of health insurance premiums for them-
selves and family members, while LLCs and corpo-
rations (if separate taxable entities) could deduct
100%. That sometimes provided a reason to form an
LLC or corporation, but no longer. A self-employed
person can now deduct 100% of those premiums.
If you form an LLC or a corporation, however,
and choose to have it taxed as a separate entity, you
can have the business hire you as an employee. The
business can pay 100% of your family’s health insur-
ance premiums and uncovered medical expenses
and then take these amounts as a business deduc-
tion; you won’t be personally taxed for the value of
this employment benefit.
Hiring Your Spouse
Can Have Tax Benefits
If you choose to do business as a sole propri-
etor, there’s a way you can deduct more of
your family’s medical expenses. First, hire your
spouse at a reasonable wage. Then, set up a
written health benefit plan covering your em-
ployees and their families. A sample form is
shown below. Your business can then deduct
100% of the medical expenses it pays.
But balance whether such a plan can save
you enough money to justify the effort. There
may be some expense for setting up the plan
and handling the associated paperwork. And
remember that your business will be obligated
for payroll taxes on your spouse’s earnings.
(See Chapter 8, Section C, for information on
payroll taxes.) But this isn’t all bad, since your
spouse will become eligible for Social Security
benefits in his or her own right, which can be
of some value—especially if he or she hasn’t
already worked long enough to qualify.
If you’re audited, the IRS will look closely
to make sure your spouse is really an em-
ployee and performing needed services for the
business.
To learn about how a person qualifies for
Social Security benefits, see Social Security,
Medicare & Government Pensions, by Joseph L.
Matthews with Dorothy Matthews Berman (Nolo).
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/7
Sample Reimbursement Plan
Sam Jones, a sole proprietor doing business as
Jones Consulting Services (the Company), es-
tablishes this Health and Accident Plan for the
benefit of the Company’s employees.
1. Coverage. Beginning January 1, 20XX, the
Company will reimburse each employee
for expenses incurred by the employee for
the medical care of the employee and the
employee’s spouse and dependents, and
for premiums for medical, dental, and dis-
ability insurance. The medical care cov-
ered by this plan is defined in Section
213(d) of the Internal Revenue Code. De-
pendents are defined in Section 152.
2. Direct Payment. The Company may, in its
discretion, pay any or all of the expenses
directly instead of reimbursing the employee.
3. Expense Documents. Before reimbursing
an employee or paying an expense di-
rectly, the Company may require the em-
ployee to submit bills and insurance pre-
mium notices.
4. Other Insurance. The Company will reim-
burse an employee or pay bills directly
only if the reimbursement or payment is
not provided for under any other health
and accident or wage continuation plan.
5. Ending or Changing the Plan. Although the
Company intends to maintain this plan in-
definitely, the Company may end or change
the plan at any time. This will not, how-
ever, affect an employee’s right to claim re-
imbursement for expenses that arose before
the plan was ended or changed.
Dated: December __, 20XX
____________________________________
Sam Jones, doing business as Jones
Consulting Services
4. Routine Business Expenses
As a sole proprietor, you can deduct day-to-day
business expenses the same way an LLC, corpora-
tion, or partnership can. Whether it’s car expenses,
meals, travel, or entertainment, the same rules apply
to all of these types of business entities.
You’ll need to keep accurate books for your busi-
ness that are clearly separate from your records of
personal expenditures. The IRS has strict rules for
tax-deductible business expenses (covered in Chap-
ter 8, Section D), and you need to be able to docu-
ment those expenses if challenged. One good ap-
proach is to keep separate checkbooks for your busi-
ness and personal expenses—and pay for all of your
business expenses out of the business checking ac-
count.
But whatever your system, please pay attention to
this basic advice: It’s simple to keep track of business
income and expenses if you keep them separate
from the start—and murder if you don’t.
B. Partnerships
If two or more people are going to own and oper-
ate your business, you must choose between estab-
lishing a partnership, a corporation, or a limited li-
ability company (LLC). This section looks at the
general partnership, which is the type of partner-
ship that most small businesses will be considering.
The limited partnership is described in Section F1,
below.
1/8 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
LAW IN THE REAL WORLD
First Things First
Ellen, Mary, and Barbara Kate, librarians all,
planned to open an electronic information
searching business with an emphasis on infor-
mation of special interest to women. They
would hold on to their daytime jobs until they
could determine whether their new business
could support all three women.
At a planning meeting to discuss buying
personal computers and modems, Ellen said
she wanted the business to be run as profes-
sionally as possible, which to her meant
promptly incorporating or forming an LLC. The
discussion about equipment was put off while
the three women tried to decide how to orga-
nize the legal structure of their business. After
several frustrating hours, they agreed to con-
tinue the discussion later and to do some re-
search about the organizational options in the
meantime.
Before the next meeting, Ellen conferred
with a small business advisor who suggested
that the women refocus their energy on the
computers and modems and getting their busi-
ness operating, keeping its legal structure as
simple as possible. One good way to do this,
she suggested, was to form a partnership, us-
ing a written partnership agreement. Each part-
ner would contribute $10,000 to buy equip-
ment and contribute roughly equal amounts of
labor. Profits would be divided equally.
Later, if the business succeeded and grew, it
might make sense to incorporate or form an
LLC and consider other issues, like a health
plan, pensions, and other benefits. But for
now, real professionalism meant getting on
with the job—not consuming time and dollars
forming an unneeded corporate or LLC entity.
The best way to form a partnership is to draw up
and sign a partnership agreement (discussed fully in
Chapter 2). Legally, you can have a partnership
without a written agreement, in which case you’d
be governed entirely by either the Uniform Partner-
ship Act or the Revised Uniform Partnership Act
(explained in Chapter 2).
Beyond a written agreement, the paperwork for
setting up a partnership is minimal—about on a par
with a sole proprietorship. You may have to file a
partnership certificate with a public office to register
your partnership name, and you may have to obtain
a business license or two. The income tax paper-
work for a partnership is marginally more complex
than that for a sole proprietorship.
1. Personal Liability
As a partner in a general partnership, you face per-
sonal liability similar to that of the owner of a sole
proprietorship. Your personal assets are at risk in
addition to all assets of the partnership. In other
words, you have unlimited personal liability on all
business debts and court judgments related to your
business.
In a partnership, any partner can take actions
that legally bind the partnership entity. That means,
for example, that if one partner signs a contract on
behalf of the partnership, it will be fully enforceable
against the partnership and each individual partner,
even if the other partners weren’t consulted in ad-
vance and didn’t approve the contract. Also, the
partnership is liable, as is each individual partner,
for injuries caused by any partner while on partner-
ship business.
EXAMPLE 1: Ted, a partner in Argon Associ-
ates, signs a contract on behalf of the partner-
ship that obligates the partnership to pay
$50,000 for certain goods and services. Esther
and Helen, the other partners, think Ted made
a terrible deal. Nevertheless, Argon Associates is
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/9
bound by Ted’s contract even though Esther
and Helen didn’t sign it.
EXAMPLE 2: Juan is a partner in Universal Con-
tractors. Elroy, one of his partners, causes an
accident while using a partnership vehicle. Juan
and all the other partners will be financially li-
able to people injured in the accident if the car
isn’t covered by adequate insurance. The same
would be true if Elroy used his own car while
on partnership business.
In both of these situations, the personal assets
(home, car, and bank accounts) of each partner will
be at stake, in addition to partnership assets. But
remember that a partnership can protect against
many risks by carrying adequate liability insurance.
2. Partners’ Rights and
Responsibilities
Each partner is entitled to full information—financial
and otherwise—about the affairs of the partnership.
Also, the partners have a “fiduciary” relationship to
one another. This means that each partner owes the
others the highest legal duty of good faith, loyalty,
and fairness in everything having to do with the
partnership.
EXAMPLE: Wheels & Deals, a partnership, is in
the business of selling used cars. No partner is
free to open a competing used-car business
without the consent of the other partners. This
would be an obvious conflict of interest and, as
such, would violate the fiduciary duty the part-
ners legally owe to one another.
Unless agreed otherwise, a person can’t become
a new partner without the consent of all the other
partners. However, in larger partnerships, it’s com-
mon for partners to provide in the partnership
agreement that new partners can be admitted with
the consent of a certain percentage of the existing
partners—75%, for example.
State laws regulating partnerships dictate what
occurs if one partner leaves your partnership and
you don’t have a partnership agreement that pro-
vides for what happens. In about half the states, the
partnership is automatically dissolved when a part-
ner withdraws or dies; the business is then liqui-
dated. In such a state, it’s an excellent idea to put a
provision in your partnership agreement that allows
the business to continue without interruption, de-
spite the technical dissolution of the partnership. A
partnership agreement, for instance, may provide a
“buy-sell” provision that calls for a buyout if one of
the partners dies or wants to leave the partnership,
avoiding a forced liquidation of the business.
EXAMPLE: Tom, Dick, and Mary are equal part-
ners. They agree in writing that if one of them
dies, the other two will buy the deceased
partner’s interest in the partnership for $50,000
so that the business will continue. (Be aware
that often a partnership agreement doesn’t fix a
precise amount as the buyout price but uses a
more complicated formula based on such data
as yearly sales, profits, or book value.) To fund
this arrangement, the partnership buys life insur-
ance covering each partner in an amount large
enough to cover the buyout. If Tom dies first,
under the terms of the agreement, his wife and
children will receive $50,000 from the partner-
ship to compensate them for the value of Tom’s
ownership interest in the business. Technically,
the remaining partners would operate as a new
partnership, but the important point is that the
business would keep functioning.
Other states—generally those that have adopted
the revised version of the Uniform Partnership Act—
follow a slightly different rule. In those states, if your
partnership was created to last for a fixed length of
time or was created for a specific project, and a part-
ner leaves before the fixed time expires or the
project is done, the partnership isn’t automatically
1/10 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
dissolved. Instead, the remaining partners have the
opportunity to continue the existing partnership
rather than having to form a new one. But even if
your state follows this more flexible approach, you’ll
still want to use buy-sell provisions to specify how
the departing partner—or the family of a partner
who’s died—gets compensated for his partnership
interest.
Chapter 5 discusses buy-sell provisions in
greater detail.
3. Income Taxes
In terms of income and losses, the tax picture for a
partnership is basically the same as that of a sole
proprietorship. A partnership doesn’t pay income
taxes. It must, however, file an informational return
that tells the government how much money the
partnership earned or lost during the tax year and
how much profit (or loss) belongs to each partner.
Each partner uses Schedule E of Form 1040 to re-
port the business profits (or losses) allocated to him
or her and then pays income tax on this share,
whether or not this income was actually distributed
during the tax year. If the partnership loses money,
each partner can deduct his or her share of losses
for that year from income earned from other
sources (subject to some fairly complicated tax basis
rules—see “Investment Partnerships,” below).
Investment Partnerships
The above analysis assumes that the partner
who deducts losses from other income actively
participates in the business. If, instead, a part-
ner is a passive investor (as is often the case in
partnerships designed to invest in real estate)
or receives income from passive sources (such
as royalties, rents, or dividends), any loss from
the partnership business is treated as a passive
loss for that partner. That means that for fed-
eral income tax purposes the loss can be de-
ducted only from other passive income—not
from ordinary income.
4. Fringe Benefits and Business
Expenses
When it comes to retained earnings, tax-sheltered
retirement plans, and fringe benefits, a partnership
is like a sole proprietorship, and the discussion in
Section A3, above, applies to partnerships as well.
Likewise, business expenses can be deducted in
the same way for a partnership as for a sole propri-
etorship; the discussion in Section A4, above, ap-
plies here as well.
Put it in writing. If you go the partnership
route, I strongly recommend that the partners
sign a written partnership agreement, even though
an oral partnership agreement is legal. The human
memory is far too fallible to rely on for the details of
important business decisions. Chapter 2 contains
basic information on how to write a partnership
agreement.
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/11
C. Corporations
If you’re concerned about limiting your personal li-
ability for business debts, you’ll want to consider or-
ganizing your business as either a limited liability
company (LLC) or a corporation. (Of course, you
may have other reasons in addition to limited liabil-
ity for considering these two business structures.)
Since the corporation has a longer legal history, I’ll
deal with it first, but the LLC—which is covered in
Section D—may well be preferable for your particu-
lar business, despite its relative newness.
This book deals primarily with the small, pri-
vately owned corporation. I’ll assume that all of the
corporate stock is owned by one person or a few
people, and that all shareholders are actively in-
volved in the management of the business—with the
possible exception of friends and relatives who have
provided seed money in exchange for stock. Be-
cause there are many complexities involved in sell-
ing stock to the public, I don’t discuss public corpo-
rations.
The most important feature of a corporation is
that, legally, it’s a separate entity from the individu-
als who own or operate it. You may own all the
stock of your corporation, and you may be its only
employee, but—if you follow sensible organiza-
tional and operating procedures—you and your cor-
poration are separate legal entities.
All states have adopted legislation that permits a
corporation to be formed by a single incorporator.
All states permit a corporate board that has a single
director, although the ability to set up a one-person
board may depend on the number of shareholders.
(See Chapter 3 for more details.) In addition, many
states have streamlined the procedures for operating
a small corporation, to permit decisions to be made
quickly and without needless formalities. For ex-
ample, in most states, shareholders and directors
can take action by unanimous written consent
rather than by holding formal meetings, and direc-
tors’ meetings can be held by telephone.
1. Limited Personal Liability
One of the main advantages of incorporating is that,
in most circumstances, it limits your personal liabil-
ity. If a court judgment is entered against the corpo-
ration, you stand to lose only the money that you’ve
invested. Generally, as long as you’ve acted in your
corporate capacity (as an employee, officer, or di-
rector) and without the intent to defraud creditors,
your home and personal bank accounts and other
valuable property can’t be touched by a creditor
who has won a lawsuit against the corporation.
EXAMPLE: Andrea is the sole shareholder, di-
rector, and officer of Market Basket Corpora-
tion, which runs a food store. Ronald, a Market
Basket employee, drops a case of canned food
on a customer’s foot. The customer sues and
wins a judgment against the business. Only cor-
porate assets are available to pay the damages.
Andrea is not personally liable.
Liability for your own acts. If Andrea
herself had dropped the case of cans, the fact
that she is a shareholder, officer, and director of the
corporation wouldn’t protect her from personal li-
ability. She would still be personally liable for the
wrongs (called torts, in legal lingo) that she person-
ally commits. So much for theory. In practice, incor-
porating may not actually give you broad legal pro-
tection.
In the real world, banks and some major corpo-
rate creditors often require the personal guarantee
of individuals within the corporation. So the limited
liability gained from incorporating isn’t always as
valuable a legal shield as it first seems.
EXAMPLE: Market Basket Corporation borrows
$75,000 from a bank. Andrea signs the promis-
sory note as president of the corporation, but
the bank also requires her to guarantee the note
personally. The corporation runs into financial
1/12 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
difficulties and can’t repay the debt. The bank
sues and wins a judgment against the business
for the unpaid principal plus interest. In collect-
ing on the judgment, the bank can go after
Andrea’s assets as well as the corporation’s
property. Incorporation offers no advantage
over a sole proprietorship when an owner per-
sonally guarantees a loan.
As mentioned in Sections A and B, above, liabil-
ity insurance can protect against many of the risks
of doing business. Because of this, many businesses
can structure themselves as sole proprietorships or
partnerships without worrying about unlimited per-
sonal liability. But if you operate a high-risk busi-
ness—child care center, chemical supply house, as-
bestos removal service, or college town bar—and
you can’t get (or can’t afford) liability insurance for
some risks that you’re concerned about, incorpora-
tion may be the wisest choice.
EXAMPLE: Loren is afraid that a clerk at his Af-
ter Hours beverage store might inadvertently
sell liquor to an underaged customer or one
who has had too much to drink. If that cus-
tomer got drunk and hurt someone in a car ac-
cident, there might be a lawsuit against the
business.
Loren contacts his insurance agent to ar-
range for coverage, but learns that his liquor
store can afford only $50,000 worth of liability
insurance. Loren buys the $50,000 worth of in-
surance, but also forms a corporation—After
Hours Inc.—to run the business. Now if an in-
jured person wins a large verdict, at least Loren
won’t be personally liable for the portion not
covered by his insurance.
The lesson of these examples is clear: Before
you decide to incorporate your business primarily
to limit your personal liability, analyze what your
exposure will be if you simply do business as a sole
proprietor (or a partner in a partnership).
The limited liability feature of corporations can
be valuable, protecting you from personal liability
for:
Debts that you haven’t personally guaranteed,
including most routine bills for supplies and
small items of equipment.
Injuries suffered by people who are injured
by business activities not covered adequately
by insurance.
Also, for a business with more than one owner,
incorporating can offer a great deal of protection
from the misdeeds or bad judgment of your co-
owners. In contrast, in a partnership, as noted
above, each partner is personally liable for the busi-
ness-related activities of the other partners.
EXAMPLE: Ted, Mona, and Maureen are part-
ners in Mercury Enterprises. Mona writes a
nasty letter about Harold, a former employee,
which causes Harold to lose the chance of a
good new job. Harold sues for defamation and
wins a $60,000 judgment against the partner-
ship. Ted and Maureen are each personally li-
able to pay the judgment even though Mona
wrote the letter.
If Mercury Enterprises had been a corporation,
Mona and the corporation would have been liable
for the judgment, but Ted and Maureen would not.
Ted and Maureen would lose money if the assets of
the corporation were seized to pay the judgment,
but their own personal assets would be safe.
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/13
LAW IN THE REAL WORLD
Going With Your Gut
Several years ago, John took over his dad’s rug
cleaning business as a sole proprietor. He
didn’t expect the business to ever grow be-
yond its status as a small local facility with six
employees and $400,000 in annual sales. But
grow it did—first to ten, then to 25 employees,
operating in four suburban cities and taking in
$3.5 million a year.
About this time, John and his wife bought a
nice house, put a few dollars in the bank, and
finished paying off the promissory note to his
dad for the purchase of the business. Things
were going so well that John began to worry
about what would happen to his personal as-
sets if the business was sued for big bucks. He
reviewed his insurance coverage and sensibly
increased some of it. He reviewed his opera-
tions and improved several systems, including
the one for storing, handling, and disposing of
toxics. Still, he felt vaguely disquieted.
Finally, even though he couldn’t identify
any other risks likely to result in a successful
lawsuit against his company, John decided to
incorporate, to limit his personal liability for
the business’s debts. He tried to explain his gut
feelings of worry to his father, but felt he
wasn’t quite making sense. The older man in-
terrupted and said, “I think you’re trying to say
that things have been going so well lately that
something is bound to mess up soon. And if
they do, you want as much of a legal shield
between your personal assets and those of the
business as possible.”
“Precisely,” John said. “But I’ve already pro-
tected myself against all obvious risks, so I
can’t logically justify a decision to incorporate.”
His father replied, “C’mon, son, business
decisions are like any other—if your gut tells
you to be a little extra careful, go with it. Run-
ning a small business means being ready to
trust your own intuition.”
Payroll taxes. Limited liability doesn’t
protect you if you fail to deposit taxes with-
held from employees’ wages—especially if you have
anything to do with making decisions about what
bills the corporation pays first. Also, because unpaid
withheld taxes aren’t dischargeable in bankruptcy,
you want to pay these before you pay other debts
(most of which can be wiped out in bankruptcy) in
case your business goes downhill.
2. Income Taxes
Federal taxation of corporations is a very compli-
cated topic. Here I deal only with basic concepts.
The federal tax laws distinguish between two
types of corporations. A C corporation is treated as
a tax-paying entity separate from its investors and it
must pay corporate federal income tax. By contrast,
a corporation that chooses “S corporation” status
doesn’t pay federal income tax; instead, income
taxes are paid by the corporation’s owners.
a. S Corporations
Electing to do business as an S corporation lets you
have the limited liability of a corporate shareholder
but pay income taxes on the same basis as a sole
proprietor or a partner. Among other things, this
means that as long as you actively participate in the
business of the S corporation, business losses can
be used as an offset against your other income—
reducing, maybe even eliminating, your tax burden.
The corporation itself doesn’t pay taxes, but files an
informational tax return telling what each share-
holder’s portion of the corporate income is.
EXAMPLE: Paul decides to start an environmen-
tal cleanup business. Because insurance isn’t
available to cover all of the risks of this busi-
ness, he forms a corporation called Ecology Ac-
tion Inc. This limits Paul’s personal liability if
1/14 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
there’s a lawsuit against the corporation for an
act not covered by insurance.
Paul is also concerned about taxes. He ex-
pects his company to lose money during its first
few years; he’d like to claim those losses on his
personal tax return to offset income he’ll be re-
ceiving from consulting and teaching work. He
registers with the IRS as an S corporation. Un-
less he changes that tax status later, his corpo-
ration won’t pay any federal income tax. Paul
will report the corporation’s income loss on his
own Form 1040 and will be able to use it as an
offset against income from other sources.
For many years, if you wanted to limit the per-
sonal liability of all owners of your business and
have the income and losses reported only on the
owners’ income tax returns, you would have no
choice but to create an S corporation. Today, you
can accomplish the same goal by creating a limited
liability company (LLC), as explained in Section D,
below. Because, in addition, an LLC offers its own-
ers the significant advantage of greater flexibility in
allocating profits and losses, it’s generally better to
structure your business as an LLC than as an S cor-
poration. (But see Section E for a discussion of
when it might be better to create an S corporation.)
Should Your Corporation Elect
S Corporation Status?
For federal tax purposes, it’s often best for a start-
up company to elect to be an S corporation rather
than a regular corporation. This is so even though
recent changes in tax rates have made this deci-
sion a bit more complex. Still, to make sure an S
corporation is best for you, speak to a knowledge-
able accountant or other tax advisor. Also keep in
mind that a limited liability company (LLC) may be
an even better choice than either type of corpora-
tion. (See Sections D and E.)
Starting as an S corporation rather than a regu-
lar corporation may be wise for several reasons:
Because income from an S corporation is
taxed at only one level rather than two,
your total tax bill will likely be less. (But
be aware that the two-tier tax structure for
regular corporations can sometimes be an
advantage. See the discussion below on
how a regular corporation can achieve tax
savings through income-splitting.)
Your business may have an operating loss the
first year. With an S corporation, you gener-
ally can pass that loss through to your per-
sonal income tax return, using it to offset in-
come that you (and your spouse, if you’re
married) may have from other sources. Of
course, if you’re expecting a profit rather than
a loss—because, for example, you’re convert-
ing a profitable sole proprietorship or partner-
ship to a corporation—this pass-through for
losses won’t be an advantage to you.
Interest you incur to buy S corporation
stock is potentially deductible as an invest-
ment interest expense.
When you sell the assets of your S corpo-
ration, you may be taxed less on your gain
than if you operated the business as a
regular corporation (because of the dual
taxation structure of corporations).
Your decision to elect to be an S corpora-
tion isn’t permanent. If you later find there
are tax advantages to being a regular cor-
poration, you can easily drop your S cor-
poration status, but timing is important.
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/15
Limits on deductions. You can deduct S
corporation losses on your personal return
only to the extent of the money you put into the cor-
poration (to buy stock) and any money you person-
ally loaned to the corporation. Also, if you don’t
work actively in the S corporation, there are poten-
tial problems with claiming losses, because they
might be considered losses from passive activities.
For the most part, you can use losses from passive
activities only to offset income from passive activi-
ties. See your tax advisor for technical details.
Shareholders pay income tax on their share of
the corporation’s profits regardless of whether they
actually received the money or not. If the corpora-
tion suffered a loss, shareholders can claim their
share of that loss.
EXAMPLE: Assume the same facts as above ex-
cept that there are two other shareholders in
Ecology Action Inc. Paul owns 50% of the
stock, and Ellen and Ted each own 25%. Paul
would report 50% of the corporation’s profit or
loss on his personal tax return, and Ellen and
Ted would each report 25% on theirs.
Most states follow the federal pattern in taxing S
corporations: they don’t impose a corporate tax,
choosing instead to tax the shareholders for corpo-
rate profits. About half a dozen states, however, do
tax an S corporation the same as a regular corpora-
tion. The tax division of your state treasury depart-
ment can tell you how S corporations are taxed in
your state.
To be treated as an S corporation, all
shareholders must sign and file IRS Form
2553. For more information on this and other re-
quirements for electing S corporation status, see
Chapter 8, Section B.
b. C Corporations
Under federal income tax laws, a C corporation is a
separate entity from its shareholders. This means
that the corporation pays taxes on any income that’s
left after business expenses have been paid.
As you saw earlier in this chapter, a sole propri-
etorship doesn’t pay federal income tax as a sepa-
rate entity; the owner simply reports the business’s
income or loss on Schedule C of Form 1040 and
adds it to (or, in the case of a loss, subtracts it from)
the owner’s other income. Similarly, a partnership
doesn’t pay federal income tax; rather, the partner-
ship annually files a form with the IRS to report
each partner’s share of yearly profit or loss from the
partnership business. Each partner then adds his or
her share of partnership income to other income
reported on his or her personal tax return (the fa-
miliar Form 1040) or deducts his or her share of
loss. And an S corporation is treated as a sole pro-
prietorship or partnership for federal income tax
purposes, depending on the number of owners.
A C corporation is different. It reports its profits
on Form 1120 and pays corporate tax on that in-
come. In addition, if the profits are distributed to
shareholders in the form of dividends, the share-
holders pay tax on the dividends they receive (cre-
ating the much-feared “double taxation” scenario).
In practice, however, a C corporation may not
have to pay any corporate income tax even though
it is a separate taxable entity. Here’s how: In most
incorporated small businesses, the owners are also
employees. They receive salaries and bonuses as
compensation for the services they perform for the
corporation. The corporation then deducts this “rea-
sonable” compensation as a business expense. In
many small corporations, compensation to owner-
employees eats up all the potential corporate prof-
its, so there’s no taxable income left for the corpo-
ration to pay taxes on.
EXAMPLE: Jody forms a one-person catering
corporation, Jody Enterprises Ltd. She owns all
the stock and is the main person running the
1/16 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
business. The corporation hires her as an em-
ployee, with the title of president. The corpora-
tion pays her a salary plus bonuses that con-
sume all of the corporation’s profits. Jody’s sal-
ary and bonuses are tax-deductible to the cor-
poration as a corporate business expense.
There are no corporate profits to tax. Jody sim-
ply pays tax on the income that she receives
from the corporation, the same as any other
corporate employee.
(1) Tax Savings Through Income Splitting
As an alternative to paying out all the corporate prof-
its in the form of salaries and bonuses, you may want
to leave some corporate income in the corporation to
finance the growth of your business. You can often
save tax dollars this way because, for the first
$50,000 of taxable corporate income, the tax rate and
actual taxes paid will generally be lower than what
you’d pay as an individual.
The federal government taxes the first $50,000 of
taxable corporate income at 15%. The next $25,000
is taxed at 25%. Taxable income over $75,000 is
taxed at 34% until taxable income reaches
$10,000,000—at which point the rate becomes 35%.
Additionally, to make larger corporations pay back
the benefits of these lower graduated tax rates, cor-
porate taxable incomes between $100,000 and
$335,000 are subject to an extra 5% tax. (See the
chart in Chapter 8, Section C1d.)
Here’s an example of how, with proper plan-
ning, a small incorporated business can split income
between the corporation and its owners, retaining
money in the corporation for expenses and lower-
ing the corporation’s tax liability to an amount that’s
actually less than what would have to be paid by
the principals of the same business if it were not
incorporated.
EXAMPLE 1: Sally and Randolph run their own
incorporated lumber supply company, S & R
Wood Inc. One year their sales increase to $1.2
million. After the close of the third quarter, Sally
and Randolph learn that S & R Wood is likely to
make $110,000 net profit (net taxable corporate
income) for the year. They decide to reward
themselves and other key employees with moder-
ate raises in pay, give a small year-end bonus to
other workers, and buy some needed equipment.
This reduces the company’s net taxable in-
come to $40,000—an amount that Sally and
Randolph feel is prudent to retain in the corpo-
ration for expansion or in case next year’s op-
erations are less profitable. Taxes on these re-
tained earnings are paid at the lowest corporate
rate, 15%. If Sally and Randy had wanted to
take home more money instead of leaving it in
the business, they could have increased their
salaries and paid taxes at a rate of at least 10%
but more probably 25% or 28% or higher, de-
pending on their tax brackets.
Watch out for a double tax trap.
C corporation shareholders (like Sally and
Randy) can also decide to take some income in the
form of a stock dividend. Doing so, however, will of-
ten increase their tax burden because both the cor-
poration and the shareholders will have to pay in-
come tax. Still, in some situations, taking some divi-
dends in place of some salary may make sense—for
example, if the corporation is in the 15% bracket
and the shareholder is in the 28% (or higher)
bracket. This gets complicated, so let a tax pro help
you figure it out. Also, be aware that paying divi-
dends won’t make sense if you have a Personal Ser-
vice Corporation (defined in Section F2, below).
Such corporations pay a flat 35%.
EXAMPLE 2: Now assume S & R Wood is not
incorporated but instead is operated as a part-
nership. Now the entire net profits of the busi-
ness ($110,000 minus the bonuses to workers
and deductible expenditures for equipment) are
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/17
taxed to Sally and Randolph. The result is that
the $40,000 (which was retained by the corpo-
ration in the above example) is taxed at their
individual rate of 25% or 28% or higher rather
than the 15% corporate rate.
For a more detailed explanation of how income-
splitting can be an advantage to owners of small
corporations, see How to Form Your Own California
Corporation, or Incorporate Your Business: A 50-
State Legal Guide to Forming a Corporation, both by
Anthony Mancuso (Nolo).
The main point to remember is that once your
business becomes profitable, doing business as a C
corporation allows a degree of flexibility in plan-
ning and controlling your federal income taxes that
is unavailable to partnerships and sole proprie-
torships. To determine whether or not favorable
corporate tax rates are a compelling reason for your
business to incorporate, you’ll need to study IRS
regulations or go through an analysis with your ac-
countant or other tax advisor.
Tax savings may be a largely theoretical advan-
tage for the person just starting out. If your business
is like many start-ups, your main concern will be
generating enough income from the business to pay
yourself a reasonable wage. Retaining profits in the
business will come later. In this situation, the tax
advantages of incorporating are illusory.
EXAMPLE: In its first year of operation, Maria’s
store, The Bookworm, has a profit of $25,000.
As the sole proprietor, Maria withdraws the en-
tire $25,000 as her personal salary, which places
her in the 15% tax bracket after she subtracts
her deductions and personal exemption. It
doesn’t make sense for Maria to incorporate to
take advantage of income-splitting techniques—
even if she could get by on say, $20,000 a year,
if she left the remaining $5,000 in the corpora-
tion, it would be taxed at the 15% corporate tax
rate, so her total tax bill would be the same.
Lower Tax Rates Not Available
for S Corporations
The lower tax rates for retained earnings don’t
apply to S corporations, because, as discussed
in Subsection a, above, an S corporation does
not itself pay taxes on earnings. Individual
shareholders in an S corporation pay taxes on
their portion of corporate earnings at their per-
sonal income tax rates (as if they were partners
in a partnership). This is true whether or not
those earnings are distributed to them, mean-
ing that even if the shareholders do leave some
earnings in the corporation, the shareholders
will be taxed on them at their regular tax rates.
(2) Fringe Benefits
The tax rules governing fringe benefits are compli-
cated. Generally, however, if your business will be
offering fringe benefits to employees, you can enjoy
a tax advantage if you organize as a regular corpora-
tion. The business can pay for employee benefits
and then take these amounts as business expense
deductions. You and the other shareholders who
work as employees of your corporation can have
the corporation pay for such employee benefits as:
deferred compensation plans
group term life insurance
reimbursement of employee medical ex-
penses that are not covered by insurance
health and disability insurance.
But the real advantage is how these fringe benefits
are treated on your personal tax return. As a share-
holder, you won’t be personally taxed for the value of
this employment benefit. That’s because none of the
employees of a regular corporation—even if they’re
owners—have to pay income tax on the value of the
fringe benefits they receive. So, for example, your
corporation may decide to provide medical insurance
for employees and to reimburse employees for unin-
sured medical payments. The corporation can deduct
these payments as a business expense—including the
1/18 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
portion paid for the owner-employees of the corpora-
tion—and you and the other owner-employees are
not taxed on these benefits.
Other types of business entities can also deduct
the cost of many fringe benefits as business ex-
penses, but owners who receive these benefits will
ordinarily be taxed on their value. That’s because
the tax laws distinguish between an employee and a
self-employed person. The tax laws say that you’re a
self-employed person—and therefore are taxed on
your fringe benefits—if you’re a sole proprietor, a
partner in a partnership, a member of an LLC that’s
taxed as a partnership, or an owner of more than 2%
of the shares of an S corporation. An owner-em-
ployee of a regular corporation, however, isn’t clas-
sified as a self-employed person. So when it comes
to the taxation of fringe benefits, owner-employees
of a corporation enjoy a unique advantage.
This favorable tax treatment may seem like a pow-
erful reason to organize your business as a regular
corporation. Not so fast. Obviously, there’s no benefit
unless your business provides these benefits to em-
ployees in the first place. And that may be too expen-
sive for some new businesses—especially because
many types of employee benefits must be provided
on a nondiscriminatory basis to a wide range of em-
ployees or to none, and must not be designed to pri-
marily aid the business owner. If you put together a
fringe benefit package that favors you and other
owner-employees, the IRS will require owners to pay
tax on their portion. Few new businesses can afford
to carry expensive benefit programs—a cost that typi-
cally more than offsets any tax advantage to you as
owner of a regular corporation.
Here are some of the IRS ground rules for fringe
benefit plans:
Medical Reimbursement Plans. If your busi-
ness promises to pay those portions of your em-
ployees’ medical expenses that are not covered
by health insurance, your plan can also include
the spouse and dependents of each employee.
Usually you’ll set a limit on the total amount that
can be reimbursed during the year; this limit
must be the same for all eligible employees. In
the typical small business, if you include owner-
employees in the plan, your plan must benefit
70% of all employees or at least 80% of all em-
ployees who are eligible to participate. You can
exclude employees who are under 25, work
seasonally or less than 35 hours per week, or
have been employed less than three years. As
long as you meet these rules, employees—even
owner-employees—won’t be taxed on reim-
bursements they receive. If you violate these
rules, however, an owner may have to pay tax
on all or part of the reimbursements that he or
she receives under the plan. (These technical
rules apply only to reimbursement of medical
expenses—not to employer payment of medical
insurance premiums.)
Group Life Insurance. Your business can pro-
vide up to $50,000 of group term life insurance
tax-free to employees (including yourself) if
you meet certain conditions. As an owner-em-
ployee of a small corporation, you’ll probably
be a “key employee” under the tax laws. (A
key employee is an officer who is paid more
than $130,000 a year, an owner of at least 5%
of the company, or an owner of at least 1% of
the company who is paid more than $150,000
a year.) If you are a key employee and want to
deduct the cost of the insurance from your
gross income, your plan must meet special
rules: It must benefit at least 70% of all em-
ployees, limit the number of key employee
participants to 15% of all group participants, or
meet other IRS guidelines for “nondiscrimina-
tion.” All benefits available to participating key
employees must be available to all other par-
ticipating members as well. You can provide
different dollar amounts of life insurance to
different employees without being “discrimina-
tory” if the amount of coverage is uniformly
related to compensation. Also, you can ex-
clude employees who’ve worked for your
company for less than three years.
Clearly, this is technical stuff. Let’s say you open
a video store and hire a bunch of students to work
part time during peak periods, and contract out for
bookkeeping services. In such a case, you can set
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/19
up a medical reimbursement plan without having to
worry about covering a whole slew of employees.
You could exclude the students because they’re un-
der 25 and work less than 35 hours a week. Your
bookkeeper, being an independent contractor,
wouldn’t be an employee and wouldn’t have to be
covered. So perhaps your plan would cover only
yourself and a few full-time employees, plus the
families of all covered employees.
(3) Retirement Plans
It used to be that by incorporating you could set up
a better tax-sheltered retirement plan than you
could get as a sole proprietor, a partner, or a share-
holder-employee in an S corporation. There are no
longer any significant differences.
3. Attracting Investors
To start and successfully run a small business, you
may need more money than you can muster from
your own savings or the cash generated by the en-
terprise. As explained in greater depth in Chapter 9,
you have two basic options in raising money from
outside sources: borrowing it or getting it from in-
vestors. If you expect to seek money from inves-
tors—even if they’re family members, friends, or
business associates—there’s a substantial advantage
in forming a corporation.
Unlike a lender who, in return for providing
money, receives a promise that you’ll repay it with
interest, an investor becomes a part-owner of the
business. While it’s possible to form a partnership
and make an investor a partner or to form an LLC
and make an investor a member, it’s often more
practical to form a corporation and make the inves-
tor a shareholder. That little piece of paper that the
corporation issues—the stock certificate—is tangible
proof of the shareholder’s ownership interest in the
business and it’s something that most investors have
come to expect. Put another way, if you offer an
investor a partnership interest or an LLC interest,
you’re more likely to run into resistance than if you
offer him or her stock in a corporation.
Keep in mind that shareholders don’t necessarily
have to have equal rights to elect the board of direc-
tors or to receive dividends. To distinguish between
various types of shareholders, you can issue different
classes of stock with different rights, for example:
common, voting shares to the initial owners
who will be working in the business
nonvoting shares for key employees to keep
them loyal to the business
nonvoting preferred shares to outside inves-
tors, giving them a preference if dividends are
declared or the corporation is sold.
To repeat this key point, the fact that the corpo-
rate structure makes it relatively easy to distinguish
between different investors by issuing different
classes of stock is a real advantage.
Stock options can motivate employees.
Especially for a business that sells stock to the
public or plans to do so before long, which allows the
market to establish a price for the stock, issuing stock
options to employees at a favorable price can be a
great way to motivate them. That’s because employees
who hold options know that if the business is profit-
able and its stock price goes up, they’ll be able to cash
in their options at a substantial profit. This can moti-
vate them to help make the business successful. Also,
employees who get stock options are often willing to
work for a slightly lower salary, making investment
capital go farther in the early days of business life.
Structuring your business as a corporation is not
only advantageous but actually essential if—like
many small business owners—you dream of some-
day attracting investors through a public offering.
And, fortunately, it’s become far easier than it used
to be for a small business to do just that without
turning to a conventional stock underwriting com-
pany. Congress and state legislatures have liberal-
ized laws that enable a small corporation to raise
from $1 million to $10 million annually through a
relatively easy-to-use procedure called a “limited
public offering.”
1/20 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
Consider using the Internet to sell shares.
You may decide to market your shares by plac-
ing your company’s small offering prospectus on the
Internet—something now allowed by the Securities
and Exchange Commission (SEC), the federal agency
that watches over securities laws. If your company
creates a website to inform the public about your
products and services, you can also use that site to
distribute your prospectus and market your shares. Of
course, you’ll first need to take care of the paperwork
required by federal and state securities laws.
Forming and running a corporation is
discussed in more detail in Chapter 3.
Illusory Incorporation Advantages
What, in addition to limited liability and some
marginal tax advantages, can you gain by incor-
porating? In drumming up enthusiasm for incor-
porating, lawyers and accountants often point to
additional supposed benefits—but these advan-
tages are rarely all they’re cracked up to be.
Illusory Benefit: Easy Transfer of Corpo-
rate Stock If You Sell the Business. The sales
pitch is that if you want to sell your interest in
the corporation (which may be as much as 100%
if you own all of the stock), you simply endorse
your stock certificate on the back and turn over
the certificate to the new owner. The corporation
then issues a new stock certificate in the new
owner’s name to replace the one that you en-
dorsed.
Reality: There’s not much of a market for a
small company’s stock. And most small business
owners go to great lengths to restrict the transfer-
ability of their stock. Moreover, in most sales of a
corporate business, the corporate assets are trans-
ferred rather than the stock. (See Chapter 10.)
Illusory Benefit: Continuity of Business. A
corporation continues even if an owner dies or
withdraws. (Plus, there may be a buy-sell agree-
ment—perhaps funded by insurance—in which
co-owners of the corporation have the right to
buy out your inheritors.) Either way, the corpora-
tion stays alive, in contrast to sole proprietorships
or partnerships, which are automatically dissolved
when the owner or a partner dies.
Reality: The death of a principal is traumatic
whether you’re a sole proprietorship, a partner-
ship, or a corporation. Usually the factors that al-
low a business to survive are personal and have
nothing to do with its formal legal structure. You
don’t need to incorporate to ensure that your
business will continue after your death. A sole
proprietor can use a living trust or will to transfer
the business to his or her heirs, and partners fre-
quently have insurance-funded buy-sell agree-
ments that allow the remaining partners to con-
tinue the business. (See Chapter 5.)
Illusory Benefit: Centralized Management.
In corporations with a number of shareholders,
management is typically centralized under a
board of directors. With a partnership consisting
of many partners, management can become frag-
mented.
Reality: If you are a partner in a partnership,
it doesn’t take a board of directors to centralize
the management; chances are you and the other
owners will make all decisions over a cup of cof-
fee.
Conclusion: In weighing pros and cons of in-
corporation, concentrate on whether you believe
you have a real need to limit your personal li-
ability and also on whether you can get substan-
tial tax benefits by retaining some earnings in the
corporation and setting up fringe benefit plans. If
you conclude that it would be beneficial to form
a business entity that offers limited liability, the
LLC (discussed in Section D) is often your best
choice. And for many new businesses—espe-
cially those that won’t run up significant debt or
expose their owners to the threat of lawsuits—a
sole proprietorship or partnership may be a per-
fectly adequate way to go, keeping in mind that
you can always incorporate the business or form
an LLC later.
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/21
D. Limited Liability Companies
The limited liability company (LLC) is the newest
form of business entity. It has enjoyed a meteoric
rise in popularity among both entrepreneurs and
lawyers—and for good reason. It’s often a very at-
tractive alternative to the traditional ways of doing
business, which are described in Sections A, B, and
C, above.
The state laws controlling how an LLC is created
and the federal tax regulations controlling how an
LLC is taxed are still evolving. Fortunately, the evo-
lutionary trends are extremely favorable to small
businesses. On the formation side, it’s becoming
simpler and simpler to set up an LLC. On the tax
side, LLCs are benefitting from increased flexibility.
For an in-depth discussion of LLCs and step-
by-step guidance on creating one: see Form
Your Own Limited Liability Company, by Anthony
Mancuso (Nolo).
Once you’ve decided that your business should
be organized as an entity that limits your personal li-
ability for business debts, you’ll have to weigh the
pros and cons of forming an LLC against the pros
and cons of forming a corporation. Sometimes, one
or the other will clearly emerge as the better choice.
Corporations and LLCs
Use Different Language
Although there are many similarities between corporations and LLCs, there are many differences as
well—especially when it comes to terminology, as shown in the following chart:
CONCEPT CORPORATION WORD LLC WORD
What an owner is called Shareholder Member
What an owner owns Shares of stock Membership interest
What document creates the entity Articles of Incorporation Articles of Organization
(or, in some states, Certificate of
Incorporation or Charter)
What document spells out internal Bylaws Operating Agreement
operating procedures
Other times, the differences are more subtle—which
often means that either will suit your needs equally
well. After you’ve absorbed the information on both
legal formats, see Section E for help in choosing be-
tween the two.
1. Limited Personal Liability
As with a corporation, all owners of an LLC enjoy
limited personal liability. This means that being a
member of an LLC doesn’t normally expose you per-
sonally to legal liability for business debts and court
judgments against the business. Generally, if you be-
come an LLC member, you risk only your share of
capital paid into the business. You will, however, be
responsible for any business debts that you person-
ally guarantee (of course, you can reduce your risk
to zero by not doing this) and for any wrongs (torts)
that you personally commit (a good insurance policy
should help here—see Chapter 12, Insuring Your
Business).
By contrast, as discussed in Sections A and B
above, owners of a sole proprietorship or general
partnership have unlimited liability for business
debts, as do the general partners in a limited part-
nership (and limited partners who take part in man-
aging the business—discussed in Section F1, below).
1/22 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
2. Number of Owners
Every state allows an LLC to be formed by just one
person. This means that if you plan to be the sole
owner of a business and you wish to limit your per-
sonal liability, you have a choice of forming a cor-
poration or an LLC.
3. Tax Flexibility
If you create a single-member LLC, it will not be
taxed as a separate entity, like a C corporation (see
Section C), unless you elect to have it taxed in this
manner. Normally, you won’t choose corporate-style
taxation, preferring to have your single-member LLC
report its profits (or losses) on Schedule C of your
personal return, just as a sole proprietorship would.
Similarly, if you have an LLC with two or more
members, it will be treated as a partnership for tax
purposes, with each partner reporting and paying
income tax on his or her share of LLC profits unless
you elect to have the LLC taxed as a corporation.
Again, you normally won’t elect to do this, prefer-
ring to have your multimember LLC follow the part-
nership tax route. This means that the LLC will re-
port its income (or loss) on Form 1065, an informa-
tional return that notifies the IRS of how much each
member earned (or lost). Each member will then
report his or her share of profits or losses on her
personal Form 1040.
Occasionally, the members of an LLC will con-
clude that there’s an advantage to being taxed like a
corporation, with two levels of tax—one at the busi-
ness entity level (for company profits) and another
at the owners’ personal income tax level (for sala-
ries and dividends). LLCs that are taxed like corpo-
rations are able to split monies between business
owners and the business itself, resulting in some
situations in a significant overall tax saving. (See
Section C2b(1), above, for a discussion of income
splitting in the corporate context.)
If, after reviewing all the financial implications—
and perhaps seeking the advice of a tax pro—you
decide to elect corporation-style taxation, you’ll do
this by filing IRS Form 8832, Entity Classification
Election. Where the LLC has two or more members,
they can all sign the form or authorize one member
or manager to sign.
Electing to have your LLC taxed as a
corporation can be advantageous if you
want to receive tax-free fringe benefits from
the business.
If you follow the usual practice of
having pass-through taxation for your LLC—mean-
ing that the business isn’t taxed as a separate en-
tity—then as a business owner you’ll be taxed on the
value of the fringe benefits you receive from the LLC
(unlike other employees). A different rule applies if
you elect to have your LLC taxed as a corporation. In
that situation, as long as you meet the IRS guide-
lines, you can receive fringe benefits as an owner-
employee of the LLC and not have to pay tax on the
value of those benefits. (For more on the tax treat-
ment of fringe benefits, see Section C2b(2), above.)
4. Flexible Management Structure
An LLC member may be an individual or a separate
legal entity such as a partnership or corporation that
has invested in the LLC. You and the other mem-
bers jointly run the LLC unless you choose to have
it run by a single member, an outside manager, or a
management group—which may consist of some
members, some nonmembers, or both. If you de-
cide to form an LLC, I recommend that all the mem-
bers sign an operating agreement that spells out
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/23
how the business will be managed. Again, the de-
tails of how to do this are well covered in Form
Your Own Limited Liability Company, by Anthony
Mancuso (Nolo).
5. Flexible Distribution of Profits
and Losses
The members of an LLC can decide to split up the
LLC profits and losses each will receive any way
they want. Although it’s common to divide LLC
profits according to the percentage of the business’s
assets each member contributed, this isn’t legally
required.
EXAMPLE: Jim, Janna, Jill, and Jerry—certified
personal trainers—form Fit for Life LLC to oper-
ate a family fitness center. Each contributes
$25,000 to the enterprise. Because Jim, who has
a strong business background, has put together
the LLC, set up a bookkeeping system, arranged
for a bank loan to purchase necessary equip-
ment, and negotiated a very favorable lease at a
good location, the owners state in their operat-
ing agreement that for the first two years, Jim
will receive 40% of the LLC’s profits and that
Janna, Jill, and Jerry will each receive 20%. After
that, they’ll share profits equally.
By contrast, rules governing corporate profits
and losses are considerably more restrictive. A C
corporation can’t allocate profits and losses to
shareholders; instead, shareholders must receive
dividends according to the number of shares they
own—if they receive dividends at all. (But it is pos-
sible, although more cumbersome, to establish two
or more classes of stock, each with different divi-
dend rights.) Similarly, in an S corporation, profits
and losses are attributed to the shareholders based
on their shares: a shareholder who owns 25% of the
shares in an S corporation ordinarily must be allo-
cated 25% of profits and losses—no more and no
less. Sometimes, however, corporations can get
away from this strict formula by adjusting the sala-
ries of shareholders who work in the business.
The easy flexibility allowed to LLCs in distribut-
ing profits and losses permits businesses to be cre-
ative and even make distributions to members who
have contributed no cash.
EXAMPLE: Howard and Saul run a home repair
business organized as an LLC. Howard puts up
all the money to needed to buy a van, tools,
and supplies and to pay for advertising bro-
chures and radio commercials. Saul, who has
little cash but loads of experience in doing
home repairs, will contribute future services to
the LLC. Although the owners could agree to
split profits and losses equally, they decide that
Howard will get 60% for the first three years as
a way of paying him back for taking the risk of
putting up cash.
Starting and operating an LLC is
discussed in more detail in Chapter 4.
For forms to use in setting up an LLC: See
Form Your Own Limited Liability Company,
by Anthony Mancuso (Nolo), and Nolo’s LLC Maker,
an easy-to-use software program that simplifies and
automates much of the work of forming an LLC.
E. Choosing Between a
Corporation and an LLC
Let’s assume that you’ve read all the earlier material
in this chapter and that you now understand the
chief legal, tax, and financial characteristics of the
main types of business entities. Let’s also assume
that you’ve concluded it would be advantageous to
operate your small business through an entity that
1/24 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
limits the personal liability of all the owners—even
if following this strategy involves a bit more paper-
work, complexity, and possible expense.
For the reasons explained earlier in this chapter,
you’ve probably narrowed your choice of entity to
either the tried and true corporation or the new and
streamlined LLC. Which is better? There’s no answer
to this question that applies to every business. Nev-
ertheless, some general principles may be helpful.
For the majority of small businesses, the relative
simplicity and flexibility of the LLC makes it the bet-
ter choice. This is especially true if your business
will hold property, such as real estate, that’s likely
to increase in value. That’s because C corporations
and their shareholders are subject to a double tax
(both the corporation and the shareholders are
taxed) on the increased value of the property when
the property is sold or the corporation is liquidated.
By contrast, LLC member-owners avoid this double
taxation because the business’s tax liabilities are
passed through to them; the LLC itself does not pay
a tax on its income.
But an LLC isn’t always the best choice. Occa-
sionally, other factors may tip the balance toward a
corporation. Such factors include the following:
You’d like to provide extensive fringe
benefits to owner-employees. Often, when
you form a corporation, you expect to be
both a shareholder (owner) and an employee.
The corporation can, for example, hire you to
serve as its chief executive officer and pay
you a tax-deductible salary, which, from a tax
standpoint, is far better than paying you divi-
dends, which can’t be deducted by the corpo-
ration as a business expense and therefore
wind up being taxed twice (once at the cor-
porate level and once at the personal level).
But corporate employees (including employ-
ees of a C corporation who are also owners)
don’t just receive pay—most also receive
fringe benefits. These benefits can include the
payment of health insurance premiums and
direct reimbursement of medical expenses.
The corporation can deduct the cost of these
benefits and they are not treated as taxable
income to the employees. Having your own
corporation pay for these fringe benefits and
then deduct the cost as a business expense
can be an attractive feature of doing business
through a regular corporation. These opportu-
nities for you to receive tax-favored fringe
benefits are somewhat reduced if you do
business as an LLC. Also, a regular corpora-
tion may be able to offer slightly better retire-
ment benefits or options under a corporate
retirement plan.
You want to entice or keep key employ-
ees by offering stock options and stock
bonus incentives. Simply put, LLCs don’t
have stock; corporations do. While it’s pos-
sible to reward an employee by offering a
membership interest in an LLC, the process is
awkward and likely to be less attractive to
employees. Therefore, if you plan to offer
ownership in your business as an employee
incentive, it makes sense to incorporate rather
than form an LLC.
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/25
Choosing Between an LLC and an S Corporation:
Self-Employment Taxes Can Tip the Balance
You know that taxes are withheld from employees’
paychecks. In 2005, for example, employers must
withhold 7.65% of the first $90,000 of an
employee’s pay for Social Security and Medicare
taxes, and 1.45% of earnings above that amount for
Medicare taxes. The employer adds an equal
amount (to match the employee’s share of Social
Security and Medicare taxes) and sends these funds
to the IRS. The total sent to the IRS is 15.3% on the
first $90,000 of wages and 2.9% on earnings above
that amount. (See Chapter 8, Section C3.)
You may not be aware that the IRS collects a
similar 15.3% tax on the first $90,000 earned by a
self-employed person and a 2.9% tax on earnings
above that amount for Medicare alone. For this
reason, the Social Security and Medicare tax is of-
ten referred to as the “self-employment” tax.
For an S corporation, the rules on the self-em-
ployment tax are well established: As an S corpo-
ration shareholder, you pay the self-employment
tax on money you receive as compensation for
services—but not on profits that automatically
pass through to you as a shareholder. For ex-
ample, if your total share of S corporation income
is $100,000 in 2005 and you perform services for
the corporation reasonably worth $65,000, you
will be taxed 15.3% on the $65,000 but not on the
remaining $35,000.
By contrast, the rules for members of an LLC
are more complicated, and, for now, somewhat
unsettled. Proposed IRS regulations (which Con-
gress has placed on hold) would impose the self-
employment tax on your entire share of LLC prof-
its in any of the following situations:
You participate in the business for more than
500 hours during the LLC’s tax year.
You work in an LLC that provides profes-
sional services in the fields of health, law,
engineering, architecture, accounting, actu-
arial science, or consulting (no matter how
many hours you work).
You’re empowered to sign contracts on be-
half of your LLC.
Even though these proposed regulations do
not have the force of law, the IRS says it won’t
challenge you if you use them in determining
your liability for self-employment tax. This
means that if you don’t fall into one of the three
categories listed above, you can use the same
rules as apply to S corporation shareholders. But
if you do fall into one of the above categories,
you should assume that 100% of your income
from the business will be subject to self-employ-
ment tax (although the amount that’s over the
current year’s Social Security tax cut-off figure—
$90,000 in 2005—will be subject only to Medi-
care tax).
The point is that, in some cases, an S corpo-
ration shareholder may pay less self-employment
tax than some LLC members with similar income.
You’ll need to decide whether these potential
tax savings are more important than gaining
such LLC advantages as flexibility in manage-
ment structure and in distributing profits and
losses.
1/26 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
F. Special Structures for
Special Situations
It’s very likely that the best organizational structure
for your small business is either a sole proprietor-
ship, partnership, corporation, or LLC. (See Sections
A, B, C, and D, above.) There are, however, some
situations in which other, less common entities will
either offer some tax or other advantage or will be
legally required. For instance, you and your tax ad-
visor may decide that selecting a less common struc-
ture may be desirable for your business. Your real
estate investment group, for example, may find
some benefit in creating a limited partnership (de-
scribed in Section 1, below). Or, you may find that
the law in your state requires you to select a less
common structure for your business; for example, if
you’re a doctor or an accountant and you want to
limit your personal liability, state law may require
you to form a professional corporation, a profes-
sional LLC, or a limited liability partnership (all of
which are described below in Section 2).
1. Limited Partnerships
The kind of partnership covered in Section B,
above, is a general partnership. It’s very different
from another form of partnership known as a lim-
ited partnership, which, in certain circumstances, can
combine the best attributes of a partnership and a
corporation.
Most limited partnerships are formed to invest in
real estate because of tax advantages for those who
are passive investors; the passive investor is often
able to personally write off depreciation and other
real estate deductions. For the majority of other
types of small businesses with more than one
owner, chances are that forming either a general
partnership, a corporation, or an LLC will be the
best way to go.
A limited partnership works like this. There must
be one or more “general partners” with the same
basic rights and responsibilities as in any general
partnership, and one or more “limited partners,”
who are usually passive investors. The big differ-
ence between a general partner and a limited part-
ner is that the general partner is personally liable
for the obligations of the partnership and the lim-
ited partner is not personally liable for them. The
most a limited partner can lose by investing in a
limited partnership is the amount that he or she:
paid or agreed to pay into the partnership as a
capital contribution; or
received from the partnership after it became
insolvent.
To maintain this limited liability, a limited part-
ner may not participate in the management of the
business, with a very few exceptions. A limited part-
ner who does get actively involved in the manage-
ment of the business risks losing immunity from
personal liability, meaning he or she would have
the same legal exposure as a general partner.
The advantage of a limited partnership as a busi-
ness structure is that it provides a way for business
owners to raise money from passive investors (the
limited partners) without having either to take in
new partners who will be active in the business or
to engage in the intricacies of creating a corporation
and issuing stock.
EXAMPLE: Anthony and Janice’s plan is to buy
rundown houses, renovate them, and then sell
them at a good profit. All they lack is the cash
to make the initial purchases. To solve this
problem, they first create a partnership consist-
ing of the two of them. Then they establish a
limited partnership, with their own partnership
as the general partner, and seek others who are
willing to invest for a defined interest in the
venture. Anthony and Janice figure that they
need $100,000 to get started. They sell ten lim-
ited partnership interests at $10,000 each. The
limited partners are given the right to a percent-
age of the profits for a specified number of
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/27
years, but they are not liable for any obligations
of the partnership.
A general partnership that’s been operating for
years can also create a limited partnership to fi-
nance expansion.
EXAMPLE: Judith and Aretha have been partners
in a small picture frame shop for two years.
They want to expand into a bigger store in a
much better location, where they can stock a
large selection of fine art prints as well as
frames. To raise money, they create a limited
partnership, offering each investor an 8% inter-
est in the total net profits of the store for the
next three years as well as the return of the in-
vested capital at the end of that period, in ex-
change for a $20,000 investment. They sell four
limited partnership interests, raising $80,000.
There is a downside to limited partnerships: Do-
ing business as a limited partnership can be at least
as costly and complicated as doing business as a
corporation. Although limited partnerships don’t
have to issue stock, state laws typically require that
a limited partnership file registration information
about the general and limited partners.
Watch out for confusing labels. Despite the
similarity in names, there are major differ-
ences between a limited partnership (discussed
above) and a limited liability partnership (discussed
below). To summarize:
A limited partnership consists of at least one
general partner and one or more limited part-
ners. A general partner in a limited partner-
ship is personally liable for all debts of and
judgments against the business—regardless of
who incurred the debt or other liability. A lim-
ited partner is generally not personally liable
for any debts or judgments unless he or she ac-
tively participates in the business.
A limited liability partnership (LLP) is a special
form of general partnership and is usually re-
served for professionals such as doctors, lawyers,
and accountants. Normally, a partner in an
LLP isn’t personally liable for the negligent acts
of other partners but is liable for his or her own
negligence and for other partnership debts.
2. Choices for Professionals
If you are a professional, such as a doctor, lawyer,
or accountant, your choice of business structure
may have to take into account certain additional
factors. These include your need to avoid group li-
ability, and state laws or rules of professional ethics
governing your choices of business structure.
a. Professional Corporations
Laws in every state permit certain professionals to
form corporations known as “professional corpora-
tions” or “professional service corporations.” In
many states, people in certain occupations (for ex-
ample, doctors, lawyers, or accountants) who want
to incorporate their practice can do so only through
a professional corporation. In some states, some
professionals have a choice of incorporating as ei-
ther a professional corporation or a regular corpora-
tion (which can elect to be an S corporation).
The list of professionals eligible to incorporate is
different in each state. Usually, though, profession-
als that must create a professional corporation in-
clude:
accountants
engineers
health care professionals such as audiologists,
dentists, nurses, opticians, optometrists, phar-
macists, physical therapists, physicians, and
speech pathologists
lawyers
psychologists
social workers
veterinarians.
1/28 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
Call your state’s corporate filing office (usually
the secretary of state or corporation commissioner)
to see who is covered in your state.
Typically, a professional corporation must be or-
ganized for the sole purpose of rendering profes-
sional services and all shareholders must be li-
censed to render that service. For example, in a
medical corporation, all of the shareholders must be
licensed physicians.
Professional corporations aren’t as popular as
they used to be. The main reason for professionals
to incorporate—favorable corporate taxation rules—
has disappeared. Before 1986, professionals who
incorporated could shelter more money from taxes
than sole proprietors or partners could. This has all
changed. Most professional corporations are now
classified as “personal service corporations” by the
IRS (see “Personal Service Corporations,” below).
Because the corporate income of personal service
corporations is taxed at a flat rate of 35%, there’s no
longer any advantage to be gained by the two-
tiered tax structure that allows ordinary corporations
to save taxes on some retained earnings. Tax laws,
however, still give favorable treatment to fringe
benefits for corporate employees in professional
corporations. (See Section C2b, above.)
Personal Service Corporations
Personal service corporations are defined un-
der federal tax laws and have two basic char-
acteristics:
the professional employees of the corpora-
tion own the stock; and
the corporation performs services in the
fields of health, law, engineering, architec-
ture, accounting, actuarial science, per-
forming arts, or consulting.
The other reason for professionals to consider
incorporation is the limitation on personal liability.
It’s no secret that malpractice verdicts against pro-
fessionals continue to climb. While incorporating
can’t protect a professional against liability for his or
her negligence, it can protect against liability for the
negligence of an associate.
EXAMPLE 1: Dr. Anton and Dr. Bartolo are sur-
geons who practice as partners. Dr. Bartolo
leaves a medical instrument inside a patient,
who bleeds to death. The jury returns a $2 mil-
lion verdict against Dr. Bartolo and the partner-
ship. There is only $1 million in malpractice in-
surance to cover the judgment. Dr. Anton (along
with Dr. Bartolo) would be personally liable for
the $1 million not covered by insurance.
EXAMPLE 2: Drs. Anton and Bartolo create a
professional corporation. Dr. Bartolo commits
the malpractice described in Example 1. Dr.
Anton, a corporate employee, would not be per-
sonally liable for the portion of the verdict not
covered by insurance. Dr. Bartolo, however,
would still be personally responsible for the $1
million excess, because he was the one guilty of
malpractice. (In some states, Dr. Anton would
be free from personal liability only if the profes-
sional corporation carried at least the minimum
amount of insurance mandated by state law.)
Insurance is a better alternative for most profes-
sionals than is the limited liability offered by incor-
poration. But with malpractice rates soaring for
many professionals, it’s often hard to afford all the
insurance you could possibly need, so forming a
professional corporation can be a useful backup.
As an alternative to incorporating, professionals
wishing to limit their personal liability should con-
sider forming a professional limited liability com-
pany (PLLC) or limited liability partnership (LLP) as
described below.
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/29
b. Professional Limited Liability
Companies
As explained above, licensed professionals are per-
mitted to incorporate but, in most states, they can do
so only by forming a special type of corporation—a
professional corporation (PC). Similarly, in many
states, licensed professionals who wish to form an
LLC are required to use a special type of LLC known
as a “professional limited liability company” (PLLC).
Lawyers or doctors in a group practice, for ex-
ample, may find it advantageous to form a PC or
PLLC so that each member of the group is legally
liable for only his or her malpractice—not the mal-
practice of other members of the group, as would
be the case in a partnership. Members of a PLLC
also won’t be personally liable for other business
debts such as obligations owed to business credi-
tors, lenders, and the landlord.
Typically, state laws require that all members of
a PLLC be licensed to practice the same profes-
sion—accounting, for example, or engineering.
Especially if the PLLC consists of lawyers, ac-
countants, engineers, doctors, or other health care
professionals, state law may require that each mem-
ber at least carry a specified amount of malpractice
insurance or be bonded.
Check the law in your state before
setting up a PLLC. If you’re a professional
and considering the creation of a PLLC, you need to
check your state’s statute to learn which profession-
als can and can’t form such an entity. There’s wide
variation from state to state. (For example, in Cali-
fornia, many professionals, such as health profes-
sionals, therapists of any type, and architects, can-
not form any type of LLC.) If you’re a member of a
state professional society, its administrator may
know the answer, or you can check the statute book
at a nearby public library. (See Chapter 24 for infor-
mation on doing legal research.)
c. Limited Liability Partnerships
In a few states, laws or professional ethics rulings
prevent accounting or law firms from doing business
as corporations or LLCs. If you’re an accountant or
lawyer in such a state and would like some limita-
tion on your personal liability for business obliga-
tions, look into forming a limited liability partnership
(LLP). Unfortunately, the protection it offers is usu-
ally less than you’d get by forming a corporation or
LLC—but it’s better than nothing.
Available in some but not all states, a limited li-
ability partnership is simply a general partnership
whose partners enjoy some protection from per-
sonal liability. LLPs are authorized under state stat-
utes and there’s a bit of variation from state to state.
Typically a partner in an LLP is personally liable
only for his or her own negligence (malpractice) or
that of an employee working directly under the
partner’s supervision; the partner isn’t personally
liable for the negligence of anyone else in the firm.
That’s helpful but, as a partner in an LLP, you’re still
personally liable for a large variety of partnership
debts not involving your own negligent acts, for ex-
ample, obligations owed to business creditors, lend-
ers, and the landlord—regardless of which partner
incurred the obligation for the partnership.
EXAMPLE: Hillary, Edgar, and Paula—all certi-
fied public accountants—want to form a new
firm, but determine that ethics rules in their state
prevent them from forming a professional cor-
poration or PLLC. Instead, they form an LLP.
Hillary, during a period of disarray in her per-
sonal life, messes up big time on a tax return for
a major client, who has to pay huge penalties to
the IRS. The client sues for malpractice and is
awarded a $25,000 judgment. The LLP and
Hillary are liable for paying the judgment. Edgar
and Paula are not.
During the same period, Hillary also orders
$15,000 worth of fancy office furniture, which
the LLP can’t afford. All three partners are per-
sonally liable for the furniture debt. (By con-
1/30 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
trast, if local ethics rules had allowed the three
accountants to organize their accounting firm as
a professional corporation or professional lim-
ited liability company and they had done so,
none of them would be personally liable for the
cost of the furniture unless they personally
guaranteed payment.)
Check the law in your state before setting
up an LLP. If you’re a professional and con-
sidering the creation of an LLP, you need to check
your state’s statute to learn which professionals can
and which can’t form an LLP, because of the wide
variation from state to state. (For example, only ar-
chitects, accountants, and lawyers can form LLPs in
California, where LLPs are referred to as “registered
limited liability partnerships,” or RLLPs.) If you’re a
member of a state professional society, its adminis-
trator may know the answer, or you can check the
statute book at a nearby public library. (See Chapter
24 for information on doing legal research.)
3. Nonprofit Corporations
Each state permits people to form nonprofit corpo-
rations, also known as not-for-profit corporations.
The main reason people form these corporations is
to get tax-exempt status under the Internal Revenue
Code (Section 501(c)(3)). To get tax-exempt status,
the corporation must have been formed for reli-
gious, charitable, literary, scientific, or educational
purposes.
If a corporation is tax-exempt under Section
501(c)(3), not only is it free from paying taxes on its
income, but people and organizations who contrib-
ute to the nonprofit corporation can take a tax de-
duction for their contributions. Because many non-
profit organizations rely heavily on grants from pub-
lic agencies and private foundations to fund their
operations, attaining 501(c)(3) status is critical to
success.
Tax-exempt status isn’t the only benefit available
to a nonprofit corporation. The nonprofit label
seems to create an altruistic aura around the organi-
zation and the people running it. The message is,
“We’re not in this for the money—we really do love
kids (or music or animals).” Also, an organization
that plans to do some heavy mailing may be at-
tracted by the cheaper postal rates that nonprofits
are charged.
What kinds of groups should consider becoming
nonprofit corporations? Here’s a partial list:
child care centers
shelters for the homeless
community health care clinics
museums
hospitals
churches, synagogues, mosques, and other
places of worship
schools
performing arts groups
conservation groups.
Most nonprofit corporations are run by a board
of directors or trustees who are actively involved in
the work of the corporation. Officers and employ-
ees (some of whom may also serve on the board)
usually carry out the day-to-day business of the cor-
poration and often receive salaries.
Keep in mind that if you put assets into a non-
profit corporation, you give up any ownership or
proprietary interest in those assets. They must be
irrevocably dedicated to the specified nonprofit pur-
poses. If you want to get out of the business, you
can’t sell it and pocket the cash. If the nonprofit
corporation does end, any remaining assets must go
to another nonprofit.
This book is addressed primarily to people
starting and running a business for profit, so
you’ll find little here on the peculiarities of nonprofit
corporations. If you want to learn about such corpo-
rations in greater depth, see How to Form Your
Own Nonprofit Corporation, by Anthony Mancuso
(Nolo). That book provides step-by-step instructions
for forming a nonprofit corporation in all states.
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/31
4. Cooperatives and Cooperative-
Type Organizations
Some people dream of forming a business of true
equals—an organization owned and controlled
democratically by its members.
These grassroots business organizers often refer
to their businesses as a group, collective, or co-
op—but these are usually informal rather than legal
labels. Everyone who starts a business with others
needs to select a legal structure. Generally, this
means picking one of the traditional formats de-
scribed in this chapter: a nonprofit corporation, a
partnership, a C corporation, or an LLC. However,
some states do have specific laws allowing the for-
mation of a “cooperative corporation.” For example,
in some states, a consumer “co-op” could be cre-
ated to manufacture and sell arts and crafts.
If a co-op law exists in your state, it can help
make the process of democratic ownership go more
smoothly. Otherwise, you’ll need to make sure your
partnership agreement, corporate bylaws, or LLC
operating agreement contains the cooperative
features that you and the other members feel are
appropriate.
To learn more about cooperative-type organi-
zations and how to start one, visit the website
of the National Cooperative Business Association at
www.ncba.org. You can order many helpful publi-
cations there. Another fine resource is Co-op Incor-
poration Sourcebook (Center for Cooperatives, Uni-
versity of California at Davis). It reviews business
feasibility and legal requirements for starting a
nonagricultural cooperative in California.
CHAPTER
2
Structuring a Partnership Agreement
A. Why You Need a Written Agreement .............................................................. 2/2
B. An Overview of Your Partnership Agreement...................................................... 2/3
1. Name and Term ...................................................................................... 2/3
2. Purpose ................................................................................................. 2/4
3. Contributions .......................................................................................... 2/4
4. Profits, Losses, Draws, and Salaries............................................................. 2/5
5. Management Responsibilities ..................................................................... 2/8
6. Partners Outside Business Activities ............................................................ 2/9
7. Departure of a PartnerBuyouts ............................................................... 2/10
8. Continuity of the Partnership .................................................................... 2/11
9. Noncompetition of Departing Partner ........................................................ 2/12
10. Control of Partnership Name ................................................................... 2/12
11. Resolving Partnership Disputes .................................................................. 2/12
C. Changes in Your Partnership ......................................................................... 2/13
2/2 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
T
here are two kinds of partnership: the
general partnership and the limited partnership.
This chapter discusses forming the more com-
mon kind, general partnerships. See Chapter 1, Section
F1, for basic information about limited partnerships.
Features of
the General Partnership
Main advantages. Simple and inexpensive to
create and operate. Owners (partners) report
their share of profit or loss on their personal
tax returns.
Main disadvantage. Owners (partners) are
personally liable for business debts.
A. Why You Need
a Written Agreement
When you form a partnership to run a small busi-
ness, your partners will probably be family mem-
bers, close friends, or business associates. You may
think it’s unnecessary to sign a document with
people you know quite well. Experience proves
otherwise. No matter how rosy things are at the be-
ginning, every partnership inevitably faces problems
over the years. A well-thought-out written agree-
ment will help you preserve the business, as well as
your friendships.
You can, however, have a legally valid partner-
ship even without a written partnership agreement.
If you don’t sign an agreement, the laws of your
state will dictate how the partnership is run. That
isn’t all bad. Every state except Louisiana has
adopted either the Uniform Partnership Act (UPA)
or the Revised Uniform Partnership Act (RUPA).
States have sometimes made slight variations in
these laws but there is still a remarkable amount of
consistency from state to state.
These state laws solve many common partnership
problems in a sensible way. For example, the UPA
says that if you don’t have an agreement, each partner
shares equally in the profits and has an equal voice in
management of the business. The UPA goes on to say
that partners are not entitled to receive compensation
for services they provide to the partnership.
While it’s conceivable that the provisions of the
UPA are exactly what you and your partners want,
partners usually prefer to modify at least some of
them. For example, if one partner contributes far
more assets than others, that partner may deserve a
greater share of the profits. Or you may want to al-
low one or more partners to receive a salary for
their services. Or you may not want each partner to
have an equal voice in running the business. Simi-
larly, you may want to include customized provi-
sions on how to value a partner’s interest in the
business if a partner dies or leaves. In that situation,
many partners want to assign some value to the
goodwill of the business for tax purposes—some-
thing that does not happen automatically under the
UPA. With a written partnership agreement, you can
tailor your partnership to fit your needs.
There are other benefits to working out the details
in a written partnership agreement. You’ll focus on
issues you might not have thought of—issues about
which you and your partners may have different opin-
ions. For example, what if one partner wants compen-
sation beyond a share of the profits to recognize
work he or she performs in the evening or on week-
ends for the partnership? By getting issues out into the
open early, you can nip problems in the bud.
STRUCTURING A PARTNERSHIP AGREEMENT 2/3
Most Partnership
Information Is Confidential
The terms of a partnership agreement for a
general partnership don’t have to be made
public. But, in some states, you must file a cer-
tificate of partnership, stating the names of the
partners, with a county official (such as the
county clerk) or state official (such as the sec-
retary of state). (See Chapter 6, Section B3.)
B. An Overview of Your
Partnership Agreement
It’s up to you and your partners to decide what
shape the partnership will take. A lawyer can help
you focus on issues and suggest possible solutions,
but you and your partners—not the lawyer—must
make the basic choices.
This section goes through the clauses that are
usually included in a partnership agreement for a
small business.
Chapter 2 of
Legal Forms for Starting &
Running a Small Business
contains a
sample partnership agreement.
Where to Find Help
With Partnership Agreements
The Partnership Book, by Denis Clifford and
Ralph Warner (Nolo). It’s the source of the
clauses in this chapter, and contains extensive
additional material on forming, managing, and
ending a partnership.
1. Name and Term
Although many partnerships do business using the
last names of the partners, it’s both legal and com-
mon for a partnership to have one name and to do
business under another name. For example, the part-
nership of Jones, Gold, and Sanchez could decide to
do business as Seafood Express. The name Seafood
Express would be an assumed name, or fictitious
name, which you’d have to register with the appro-
priate state or county office.
Chapter 6 contains a thorough discussion
of business and product names.
Another issue is how long the partnership will
last. If you want it to go on indefinitely, include a
clause in your partnership agreement like this:
The partnership shall last until it is dissolved by
all the partners or a partner leaves, for any
reason, including death.
On the other hand, if you plan to develop a par-
ticular piece of real estate or do some other finite
task, you might want a clause with a definite date,
such as one of the following:
The partnership shall commence as of the date
of this agreement and shall continue for a
period of _____ years, at which time it shall be
dissolved and its affairs wound up.
or
The partnership shall continue until ____ [
specify
an event such as “the completion and sale of
The Commercial Office Plaza”
], at which time
the partnership shall be dissolved and its affairs
wound up.
2/4 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
2. Purpose
The purpose of the partnership should be broadly
stated in plain English. The advantage of a broad
statement of partnership purposes is that you have
flexibility if the business evolves. Here are two typi-
cal purpose clauses:
The purpose of the partnership is to operate
one or more stores for the sale of records,
tapes, compact discs, or other related merchan-
dise.
or
The purpose of the partnership is to operate a
bookkeeping and tax preparation service for
individual clients and small businesses.
On the other hand, if you’re sure you’re creating
your partnership for a short-term, specific purpose,
such as presenting one trade show, it would be ap-
propriate to use a more limited purpose clause,
such as this one:
The purpose of the partnership is to organize
and present this year’s Builders and Home
Improvement Show at the Municipal Conven-
tion Center.
3. Contributions
Your partnership agreement should describe the ini-
tial contributions that you and your partners will
make. Often, each partner contributes cash only.
The amounts of contributions may be equal, but
don’t have to be. For example, one partner might
contribute $5,000 while another contributes $1,000
and a third contributes a pickup truck. If a partner
contributes property such as a vehicle, tools, a
building, a patent, or a copyright, you need to
agree on the value of that property. You can also
provide that one of the partners will contribute per-
sonal services (perhaps painting the business head-
quarters) in return for a partnership interest. Keep in
mind that a partner can sell, lend, lease, or rent
property to the partnership too.
a. Cash Contributions
It’s logically neat if each partner contributes an equal
amount of cash to a new business. Otherwise, part-
ners who invest more money than the others may
feel entitled to a larger voice in making partnership
decisions. But in the real world, not all partners are
always able to make equal contributions of cash.
One way to handle this is to have the partner who
contributes more lend the extra amount to the busi-
ness rather than contribute it outright.
EXAMPLE: Ricardo and Alberta are opening a
martial arts training center. Ricardo has just left a
job at a corporation and received a handsome
severance package. He’s willing to put $40,000
into the business. Alberta, on the other hand, is a
single mother who wants to start a business pre-
cisely because she is short of money. She can
raise $10,000. Alberta could contribute $10,000
and Ricardo $40,000, with Ricardo having more
say in partnership decisions than Alberta. But an
easier and more democratic approach would be
for each to contribute $10,000 in cash, with
Ricardo lending the partnership the additional
$30,000, to be repaid over three years at 10% an-
nual interest.
A basic clause for equal cash contributions reads
as follows:
The initial capital of the partnership shall be a
total of $_________________. Each partner shall
contribute an equal share amounting to
$____________ no later than _______________,
20____. Each partner shall own an equal share
of the business.
STRUCTURING A PARTNERSHIP AGREEMENT 2/5
If a partner can’t initially contribute the desired
amount of cash, another way to handle this prob-
lem is to agree that he or she will make payments
over time. Here’s a sample clause.
Arthur Feldman shall be a partner upon making
an initial contribution of $1,000 to the capital
of the partnership. He will subsequently
contribute to the partnership capital, and his
capital account shall be credited, in the amount
of $100 per month beginning July 1, 20__,
until he has contributed the sum of $5,000
(including the initial $1,000 payment).
Interest on Partnership Investment: Should
partners receive interest on their contributions of
capital? Generally, no—after all, the money is al-
ready at work building a jointly owned business.
But either way you decide this issue, cover it with a
specific clause in the partnership agreement.
b. Contributions of Services
Sometimes, a partner’s contribution consists wholly
or in part of services. In the above example con-
cerning Alberta’s contribution to the martial arts
training center, another way to handle the disparity
in available cash would be for Alberta to agree to
work a certain number of hours more than Ricardo
at a fixed rate (say $20 per hour) until the contribu-
tions were equalized. After that, the partners would
work an equal amount of hours each week. If a
partner is going to contribute services in return for
an interest in the business, this should be spelled
out in the partnership agreement.
EXAMPLE: Margaret and Alice form a 50/50
partnership for catering parties. Each will spend
equal time on preparing the food and delivering
it. Margaret contributes $10,000 to get the busi-
ness going. Alice agrees to contribute unpaid
labor as a bookkeeper and business manager
for one year over and above the amount of
time she spends on food-related work. Their
intention is to equalize the contributions of the
partners.
c. Contributions of Property
Some or all of the partners may contribute property
as well as, or instead of, cash. A clause covering
this possibility might look like this:
________________ shall contribute property
valued at $_______________ consisting of
_______________ ________________ by
_______________, 20____. [
If the property is
difficult to describe, describe it in detail on a
separate sheet of paper marked
“Exhibit A”
and add here,
“and more particularly described
in Exhibit A, attached to this agreement.”]
Getting expert help. If you’re transferring
property to your partnership, you may need
the assistance of a tax expert. Such contributions
raise questions about what tax basis (value) will be
assigned to the property being transferred. The IRS
looks at tax basis in determining how much profit
you’ve gained when the property is later transferred
or sold as well as the amount of losses you can claim
on your tax return if the business is not profitable.
These tax details are beyond the scope of this book.
4. Profits, Losses, Draws,
and Salaries
How will partners be compensated? The first issue is
how you’ll divide profits once a year or at the end of
some other fixed period. You should also determine
whether any partners can receive an early draw
against their share of the profits—that is, be paid a
portion of profits sooner than other partners. This
might be appropriate if one partner is coming into
the partnership with less savings than the others and
is counting on partnership income for living ex-
penses.
2/6 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
You’ll also need to decide whether any partners
will receive a salary for work done in the business
in addition to draws on their share of profits. If
equal partners will all work a roughly equal number
of hours, there’s no need to pay salaries; an equal
division of profits with or without a draw should be
adequate. But if one partner will work more hours
than the others, paying that partner a salary may be
sensible. Or you could give the harder-working
partner a larger share of the profits. If salaries are
paid, they’re a normal business expense and don’t
come out of profits.
If profits are shared equally, the following clause
would be appropriate:
The partners will share all profits equally, and
they will be distributed [
monthly, yearly, etc.
].
All losses of the partnership will also be shared
equally.
On the other hand, if profits and losses will be
shared unequally, here are some sample clauses to
consider:
Partnership profits and losses will be shared
among the partners as follows:
Name Percentage
_____________________________ ___________
_____________________________ ___________
_____________________________ ___________
_____________________________ ___________
or
Partnership profits and losses shall be shared
among the partners as follows:
Name % of % of
Profits Losses
_____________ _________ _________
_____________ _________ _________
_____________ _________ _________
or
Partnership profits and losses shall be shared by
the partners in the same proportion as their
contributions of capital bear to each other.
A draw is an advance of anticipated profits paid
to a partner or partners. It’s easiest if draws are to be
made by all partners. But if you want to authorize
draws for only certain partners, a clause like the fol-
lowing is appropriate:
Partners ______________________ and
__________________ are entitled to draws from
expected partnership profits. The amount of
each draw will be determined by a vote of the
partners. The draws shall be [
monthly or on any
other kind of schedule that you agree to
].
You may also want to provide for the partnership
to retain some profits in the business for new equip-
ment, expansion, or employee bonuses. Here’s a
sample clause:
In determining the amount of profits available
for distribution, allowance will be made for the
fact that some money must remain undistributed
and available as working capital as determined
by [
for example, “all partners” or “a majority of
partners”
].
Even though profits are reinvested, you and the
other partners are taxed on your shares of them at
your individual rates. (Chapter 1, Section C2b, dis-
cusses how a regular corporation may afford tax ad-
vantages over a partnership when a business has re-
tained earnings.)
STRUCTURING A PARTNERSHIP AGREEMENT 2/7
The Authority of Partners
Do you want each partner to be able to make
decisions that bind the partnership in the nor-
mal operation of its business? Or do you want
some limitations—for example, that large con-
tracts or purchases must be approved in ad-
vance by a majority of the partners? You can
address this issue in your partnership agree-
ment. But remember that while a limitation on
a partner’s authority is binding among the part-
ners themselves, it doesn’t necessarily limit li-
ability to outsiders who deal with the partner.
EXAMPLE: Peggy, Roger, and Lisa run a
bookkeeping and billing service for several
doctors, dentists, and clinics. Peggy, who is a
computer whiz, believes that there’s no such
thing as too much electronic equipment. So
in the partnership agreement, a clause pro-
vides that any purchase of equipment re-
quires the approval of at least two of the
partners. Peggy buys three notebook com-
puters, two laser printers, and assorted mo-
dems and fax machines for the partnership,
without approval. The partnership and each
partner are liable for the $12,000 bill, even
though the partners limited liability among
themselves. When Peggy purchased the
equipment, the computer store didn’t know
what was in the partnership agreement—the
usual case. And Peggy appeared to have au-
thority to bind the partnership. The other
partners, however, will have a legal claim
against Peggy because she exceeded her au-
thority under the partnership agreement.
LAW IN THE REAL WORLD
A Profitable Experience
Jan and Mike discussed forming a partnership
to open a desktop publishing service aimed at
helping small businesses design brochures, fly-
ers, and other promotional material. The idea
of sharing the work and profits 50-50 appealed
to both of them. There was only one major
hang-up: The partnership agreement form they
looked at provided for profits to be divided at
the end of the year. This was okay with Mike,
who had received a generous severance pack-
age from a former job, but not for Jan, who
was trying to put her daughter through college
and had no financial cushion.
Recognizing their different circumstances,
Jan and Mike agreed Jan would be allowed to
take a monthly draw against her share of
anticipated partnership profits of $3,000. And
because they realized a new business needs all
the cash it can get its hands on, Mike would
wait and take the same amount at the end of
the year. Then Mike and Jan would split any
additional profits.
To guard against the possibility that Jan’s
draw would use up more than half of the
profits and shortchange Mike, the partners,
after checking the tax consequences with
their tax advisor, also agreed that any amount
Jan received over her 50% share would be
considered a personal loan from the partner-
ship, to be repaid out of her share of future
years’ profits.
2/8 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
5. Management Responsibilities
It’s wise to pin down the basic way you’ll operate
the business. Commonly, in small business partner-
ships, all partners are involved in management and
supervision, justifying a clause like the following:
All partners shall be actively involved and
materially participate in the management of
operation of the partnership business.
You can go further if you want every partner to
have a veto power:
All partnership decisions must be made by the
unanimous agreement of all partners.
Some small business partnerships distinguish be-
tween major and minor decisions, allowing a single
partner to make a minor decision but requiring una-
nimity for major ones. If you decide to go down
this road, you have to figure out how to define a
major decision. The distinction between major and
minor decisions—especially purchases or the under-
taking of obligations—is often based on a dollar
amount. A clause like this one would be appropri-
ate:
All major decisions of the partnership business
must be made by a unanimous decision of all
partners. Minor business decisions may be
made by an individual partner. Major deci-
sions are defined as all purchases and con-
tracts over $5,000 [
or other definition of major
decisions
].
If you want to provide for unequal management
powers, here are some clauses to consider:
Each partner shall participate in the manage-
ment of the business. In exercising the powers
of management, each partner’s vote shall be in
proportion to his or her interest in the
partnership’s capital.
or
In the management, control, and direction of
the business, the partners shall have the
following percentages of voting power:
Name Percentage
_______________________ __________
_______________________ __________
_______________________ __________
_______________________ __________
If the partners are going to contribute different
types of skills, you may also want to state that in
your partnership agreement. And while it may seem
unnecessary to list the hours to be worked, you
may avoid possible problems through a clause such
as the following:
Except for vacations, holidays, and times of
illness, each partner will work __________
hours per week on partnership business.
Consider a clause on leaves of absence or sab-
baticals. How much time off is allowed? And what
happens to a partner’s right to receive pay or profits
while on leave?
Other financial matters to be dealt with in the
partnership agreement may include the following:
May partners borrow money on behalf of the
partnership? Is there a dollar limit on how
much a partner can borrow on behalf of the
partnership without the prior consent of all
partners?
Are expense accounts authorized? If so, is
there a limit on the amount?
How many signatures are required on part-
nership checks and to withdraw money from
the partnership bank account?
How many weeks of paid or unpaid vacation
each year are partners entitled to?
STRUCTURING A PARTNERSHIP AGREEMENT 2/9
6. Partners’ Outside
Business Activities
A key partnership question is whether or not any
partner can engage in outside business. In some in-
stances, they must, at least at first, because the part-
nership business income isn’t enough to live on. If a
partner can engage in outside business, what types
are permitted? You wouldn’t want a partner to di-
rectly compete with the partnership. That would be
a conflict of interest. But how do you define direct
competition? If the partners are running a restau-
rant, can one of the partners own a catering busi-
ness? Or work in a delicatessen? There are at least
four different approaches to this issue. You can:
Allow partners to engage in one or more
other businesses except for those that directly
compete with the partnership business.
Allow partners to engage in other businesses
without any other restrictions.
List permitted activities.
Prohibit partners from participating in any
other business.
Here’s an example of the first approach:
Any partner may engage in one or more other
businesses as well as the business of the
partnership, but only to the extent that this
activity does not directly and materially
interfere with the business of the partnership
and does not conflict with the time commit-
ments or other obligations of that partner to the
partnership under this agreement. Neither the
partnership nor any other partner shall have
any right to any income or profit derived by a
partner from any outside business activity
permitted under this section.
LAW IN THE REAL WORLD
Outside Interests
When Ted M. and Ted Y. formed a partnership
and opened a bookstore (yup, they called it
Two Teds), they didn’t expect to make much,
if any, money right away. According to their
business plan, it would take two to three years
for the store to be solidly profitable. In the
meantime, both men would have to hold down
second jobs. This led to a serious problem.
Both men already worked in the book business
(Ted M. managed a secondhand book shop,
and Ted Y. was a sales rep for a large pub-
lisher) and wanted to avoid any hint of a con-
flict of interest between their personal and
partnership interests.
Ted Y. explained his store plans to the pub-
lisher he worked for, who agreed to reduce his
sales territory and let him work three days per
week. (Ted Y. also promised to work 30 hours
at Two Teds.) Because selling books to stores
and selling them to the public aren’t competi-
tive operations, it was easy for the Teds to
agree in writing as part of their partnership
agreement that Ted Y.’s job didn’t amount to a
conflict of interest with the partnership.
Ted M.’s situation was tougher. No matter
how much they thought about it, managing
one store while owning part of another in the
same city reeked of possible conflicts of inter-
est. To solve this, it was decided that Ted M.
would quit managing the other store. Initially,
at least, he would work 55 hours per week at
Two Teds and be paid a reasonable salary
for the 25 hours per week he worked more
than Ted Y.
2/10 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
7. Departure of a Partner—Buyouts
Now we’re getting into one of the most essential—
but complicated—areas of a partnership agreement:
what you’ll do if one of the partners voluntarily
leaves, becomes disabled, or dies. These things are
not easy to think about when you’re caught up in
the excitement of starting a new business. Still, it’s
risky to postpone facing them. Sooner or later the
partnership will change and fundamental issues will
come up. A partner may want to leave for any num-
ber of reasons—such as to start another business or
to move to another part of the country. Or maybe a
partner will retire or die. Can the departing partner
sell his or her interest? Do the remaining partners or
partner have the right to buy it? How is the pur-
chase price determined?
If one partner quits or dies, most partnership
agreements very sensibly require a departing part-
ner to give the remaining partners the chance to
buy out his or her share and continue the business
before selling or transferring it to outsiders. Here’s a
sample “right of first refusal” clause designed to ac-
complish this:
If any partner leaves the partnership, for
whatever reason, whether he or she quits,
withdraws, is expelled, retires, or dies, or
becomes mentally or physically incapacitated
or unable to fully function as a partner, he or
she, or (in the case of a deceased partner) his
or her estate, shall be obligated to sell his or
her interest in the partnership to the remaining
partners, who may buy that interest under the
terms and conditions set forth in this agree-
ment.
This option protects the remaining partners. But
what if the departing partner has found a buyer
who is willing to pay a hefty price for that partner-
ship interest? Some partnerships don’t compel a de-
parting partner to take a lower price (as predeter-
mined in the partnership agreement) than he or she
would get from a bona fide outside buyer; their
partnership agreements provide that the existing
partners must pay the market price for the depart-
ing partner’s share. Either way you resolve this is-
sue, you should spell out your solution in the part-
nership agreement.
Here’s a different approach:
If the remaining partners do not purchase the
departing partner’s share of the business under
the terms provided in this agreement within
_____ days after the departing partner leaves,
the entire business of the partnership shall be
put up for sale and listed with an appropriate
sales agent or broker.
a. Valuing a Partner’s Share
One major issue in a buy-out clause is how you’ll
set the worth of the business—and the value of a
partner’s share. Let’s look at some specific valuation
methods.
The asset valuation method is based on the cur-
rent net worth of the business (assets minus liabili-
ties). As of the date the departing partner leaves,
the net worth of all partnership assets is calculated
and all outstanding business debts are deducted to
determine net worth. Because goodwill isn’t a tan-
gible asset, it’s not counted. The departing partner
receives his or her ownership percentage of this
amount, under whatever payout terms you agreed
on.
The book valuation method is a variation of the
asset valuation method. You calculate the value of
all partnership assets and liabilities as they’re set
forth in the partnership accounting books, which
basically means the acquisition cost. Because book
value doesn’t cover goodwill, in a successful busi-
ness it has little relation to what the business is re-
ally worth. Furthermore, the acquisition cost of
property is unlikely to be its current worth.
STRUCTURING A PARTNERSHIP AGREEMENT 2/11
The set-dollar method involves an agreement by
the partners in advance that if one partner departs
from the partnership, the others will buy out his or
her share for a preestablished price. Before adopt-
ing this method, be aware that the price selected
may be arbitrary. Even if accurate for the present
time, the worth of the business may fluctuate, mak-
ing a predetermined value out of date. You might
consider having the partners unanimously establish
a value in writing for the partnership each year.
A post-departure appraisal means that you agree
to have an independent appraiser determine the
worth of the partnership when a partner departs. It
sounds good in principle, but because many small
businesses aren’t amenable to precise valuation,
even in the hands of an expert appraiser, it can lead
to bitter arguments later.
The capitalization of earnings method deter-
mines what the business is worth based on what it
earns. Unless there’s an open market to set a price,
the best estimate of what a business is worth often
depends on its earning capacity. This method works
best with a business that’s been around for several
years. First you need to measure the earnings of the
business for a year or more. Then you must agree
on a multiplier (often two to five) which, in effect,
takes into consideration the fact that a buyer hopes
to reap profits in future years. Finally, you multiply
the earnings by your multiplier to arrive at a value.
But how do you establish the multiplier? Often one
is already loosely established in a particular indus-
try. A consultant or trade magazine may tell you
that profitable dry cleaning businesses are often
sold on the basis of multiplying profits by a certain
number. Be aware that this sort of information is at
best an estimate, which can change by industry, in-
dividual business, and year. If you decide to use
this method of valuing your business, you’ll need
expert advice.
You may want to have a different buyout price
depending on when or why a partner departs. For
example, a partner who leaves during the initial
stages of a business (say, the first one or two years)
may be entitled only to the balance in his or her
capital account. After that initial period, the depart-
ing partner’s interest could be calculated by a
method that more accurately reflects the actual op-
eration and success of the business.
You could also have varying formulas depending
on why the partner leaves. For example, there
might be one formula if the partner becomes dis-
abled, retires over age 65, or dies, and another for-
mula if the partner leaves under other circum-
stances.
b. Payments to Departing Partners
Your partnership agreement should provide for a
payment schedule if there’s a buyout. Otherwise,
the departing partner would have the right to col-
lect for the full value of his or her interest promptly.
This could become a serious problem if a partner
dies, since the deceased partner’s family would
likely insist on exercising this right.
Your decision on payment terms has a close re-
lationship to the method you use for determining
the buyout price. If the remaining partners can pay
the price over a number of years, they’re usually
willing to pay a higher buyout price than if they
must pay all the cash the day a partner leaves.
One of the best ways to finance the buyout of a
partner’s interest is through insurance. If a partner
dies, the proceeds from the partnership-financed
insurance policy are used to pay off his or her
share, and partnership operating income doesn’t
have to be used. Many profitable partnerships buy
insurance against each partner’s serious illness, in-
capacity, or death. This can be a sensible way of
obtaining money to pay off a deceased partner’s in-
terest; a term policy, which is relatively cheap, is
especially good.
8. Continuity of the Partnership
If a partnership has more than two members, the
remaining partners usually want to continue the
2/12 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
business as a partnership when a partner leaves.
Here’s a clause that you can use to assure the con-
tinuation of a partnership:
In the case of a partner’s death, permanent
disability, retirement, voluntary withdrawal, or
expulsion from a partnership, the partnership
shall not dissolve or terminate, but its business
shall continue without interruption and without
any break in continuity. On the disability,
retirement, withdrawal, expulsion, or death of
any partner, the others shall not liquidate or
wind up the affairs of the partnership, but shall
continue to conduct the partnership under the
terms of this agreement.
9. Noncompetition
of Departing Partner
Another issue relating to a partner who leaves the
partnership is future competition. You may want to
prohibit the departing partner from competing
against your firm. This may include the protection
of your trade secrets and customer lists.
Legally, this is a touchy area. Forbidding a part-
ner from engaging in his or her usual way of earn-
ing a living is a drastic act, and courts often refuse
to enforce unfairly restrictive terms. To be legal, a
noncompetition agreement normally must be rea-
sonably limited in both time and geographical area
and be otherwise fair. State laws vary in regard to
noncompetition clauses, and it’s not always possible
to tell whether or not a judge will enforce one. If
you’re determined to include a noncompetition
clause in your agreement, it makes sense to see a
lawyer familiar with small business concerns.
This sample clause will give you an idea of how
these clauses are often drafted:
On the voluntary withdrawal, permanent
disability, retirement, or expulsion of any
partner, that partner shall not carry on a
business the same as or similar to the business
of the partnership within the [
describe area
] for
a period of [
time period you’ve agreed on
].
10. Control of Partnership Name
A business name can be valuable. The partnership
agreement should spell out what happens to it if a
partner leaves. There are a number of ways to
handle this, including a clause stating that the part-
nership continues to own the name, that one part-
ner owns the name, that control of the name will be
decided on at a later date, or, finally, that in the
event of dissolution, the partnership business name
will be owned by a majority of the former partners.
11. Resolving Partnership Disputes
Suppose there’s a serious disagreement between the
partners and you can’t resolve it by personal discus-
sions and negotiations. You may find yourself in
court, which is a costly, time-consuming, and emo-
tionally draining way to deal with the dispute. For-
tunately, there’s a way around litigation as a means
of resolving disputes. You can provide in your part-
nership agreement for mediation or arbitration or
both. These subjects are treated in more depth in
Chapter 22. Please read that discussion if you’re not
fully familiar with these methods.
Here’s an example of a mediation clause:
Any dispute arising out of this agreement or the
partnership business will be resolved by
mediation, if possible. The partners pledge to
cooperate fully and fairly with the mediator in
an attempt to reach a mutually satisfactory
compromise to a dispute. The mediator will be
________________________. If any partner to a
dispute feels it cannot be resolved by the
STRUCTURING A PARTNERSHIP AGREEMENT 2/13
partners themselves, he or she shall so notify
the other partners and the mediator in writing.
Mediation will commence within ____ days of
the Notice of Request for Mediation. The cost
of mediation will be shared equally by all
partners to the dispute.
To protect yourselves should mediation fail, you
can follow up with an arbitration clause that takes
over if a dispute can’t be mediated to the satisfac-
tion of the parties. The partners are bound by the
arbitrator’s decision, which can be enforced in
court.
See Chapter 22, Sections B and C, for
additional mediation and arbitration
clauses.
If you include both mediation and arbitration
clauses in your partnership agreement, you need to
decide whether the mediator and arbitrator should
be the same person. If you have the same person
playing both roles, you don’t run the risk of having
to present the case twice—first to the mediator and
then, if mediation fails, to the arbitrator. On the
other hand, the person who has ultimate power to
make a decision as an arbitrator may be less effec-
tive as a mediator.
C. Changes in Your
Partnership
As your business changes, your partnership agree-
ment will have to change, too. For example, the ad-
dition of a new partner requires revision of at least
the clauses listing the partners’ names and those
covering contributions and distribution of profits.
Even if you admit no new partners, the growth
of your business may require you to change your
agreement. You and your partners may decide to
run your expanded business differently than the
original business. Or maybe more cash is required,
and the partners decide that their contributions
should be in proportions different from those origi-
nally agreed to.
Any time you make a significant change in the
structure or operation of your business, you should
change the partnership agreement to reflect it.
The owners of most small partnerships specify
that the partnership agreement may be amended
only by the written consent of all partners. But you
can create any amendment clause you choose. For
example, you could specify that the agreement can
be amended by vote of 51% of the partners or by
51% of the capital accounts.
At some point, your partnership may well decide
to add another partner. You may need a new
partner’s contribution of cash or skills, or you may
want to retain a key employee by making him or
her a partner. Because a partnership technically is
dissolved when a new partner joins it, it’s helpful to
include a clause in your partnership agreement such
as the following one:
Admission of a new partner shall not cause
dissolution of the underlying partnership
business, which will be continued by the new
partnership entity.
CHAPTER
3
Creating a Corporation
A. The Structure of a Corporation ........................................................................ 3/2
1. Incorporators .......................................................................................... 3/3
2. Shareholders........................................................................................... 3/3
3. Directors ................................................................................................ 3/4
4. Officers ................................................................................................. 3/4
5. Employees .............................................................................................. 3/4
6. How It All Fits Together ............................................................................. 3/5
B. Financing Your Corporation ............................................................................ 3/5
1. Funding Your Corporation With Equity ........................................................ 3/5
2. Funding Your Corporation With Debt .......................................................... 3/6
3. Leasing Property to the Corporation ............................................................ 3/6
C. Compensating Yourself .................................................................................. 3/6
1. Salary and Bonuses ................................................................................. 3/6
2. Interest on Loans to the Corporation ............................................................ 3/6
3. Fringe Benefits ........................................................................................ 3/7
4. Dividends ............................................................................................... 3/7
D. Do You Need a Lawyer to Incorporate? ........................................................... 3/7
E. Overview of Incorporation Procedures .............................................................. 3/8
F. Twelve Basic Steps to Incorporate.................................................................... 3/8
G. After You Incorporate .................................................................................. 3/17
H. Safe Business Practices for Your Corporation ................................................... 3/17
1. Put Adequate Capital Into Your Corporation ............................................... 3/19
2. Insure Against Obvious Risks .................................................................... 3/19
3. Observe Corporate Formalities................................................................. 3/19
4. Separate Your Personal Finances From the Corporations .............................. 3/20
5. Use the Correct Corporate Name ............................................................. 3/20
6. Sign Documents as a Corporate Officer .................................................... 3/20
7. Assign Existing Business Contracts to the Corporation ................................... 3/21
3/2 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
C
hapter 1 introduced the basic business
entities—the sole proprietorship, the part-
nership, the limited liability company, and
the corporation. This chapter tells you more about
setting up a corporation. We’ll start with the struc-
ture of a corporation, including the roles of the key
players: the incorporators, shareholders, directors,
officers, and employees. Then we’ll look at corpo-
rate finance—how you get money into the corpora-
tion and how you take it out. Next we’ll walk step
by step through the procedures for setting up a cor-
poration. Finally, we’ll examine some sound corpo-
rate business practices.
The material in this chapter applies to most, but
not all, new corporations. Generally, this material
will apply to you if your proposed corporation fits
the following profile:
A relatively small number of people—about
ten or fewer—will own the corporate stock.
All or most of the owners will participate di-
rectly in managing and running the business;
investors who don’t directly participate will
generally be limited to friends or family mem-
bers.
All of the owners will live in the state in
which you form your corporation and con-
duct your business.
Lawyers often call a small corporation that fits
this profile a “closely held corporation.” We’ll bor-
row this term in its most general, nontechnical sense.
Classifying your corporation at the outset is im-
portant because if you’re a closely held corporation
and sell stock to only a few friends or family mem-
bers, normally you’ll be exempt from all but the
most routine requirements of federal and state secu-
rities laws.
But if you sell stock in your corporation to out-
side investors—people who won’t help run the
business or aren’t closely tied to people who are—
you must comply with those laws. So if you want to
sell stock to a wider range of people, especially if
any of them live in a different state, you’ll need to
learn more about the requirements of the securities
laws. In many states, there are generous exemptions
that allow sales of stock to as many as 35 investors
without complicated paperwork. But because this is
such a technical area and laws vary from state to
state, you should seek legal advice from a lawyer
knowledgeable about securities laws before you of-
fer stock to outsiders.
A. The Structure
of a Corporation
Corporations are controlled primarily by state, not
federal, law. This means that 50 different sets of
rules cover how corporations are created. Terminol-
ogy differs from state to state. For example, most
states use the term “articles of incorporation” to re-
fer to the basic document creating the corporation,
but some states (including Connecticut, Delaware,
New Jersey, New York, and Oklahoma) use the
term “certificate of incorporation.” Tennessee calls it
a “charter,” and Massachusetts uses the term “ar-
ticles of organization.” Fortunately, the similarities in
corporate procedure outweigh the differences, so
most of what you find in this chapter will apply to
your own situation. Nevertheless, watch out for the
differences.
People involved in a corporation traditionally
play different legal roles: incorporator, shareholder,
director, officer, employee. We’ll look at those roles
here. But, in virtually every state, there’s a way that
you can set up a corporation in which one or two
people play all roles.
CREATING A CORPORATION 3/3
LAW IN THE REAL WORLD
Keeping a Hand in the Business
Anne opened a small business providing cus-
tomized bookkeeping software for manicurists.
For several years she struggled financially as
she tried to convince small nail shops that buy-
ing her computerized system would ultimately
be far cheaper than keeping records in a shoe
box. Finally, when a trade magazine gave her
system a rave review, business took off. Sud-
denly Anne found herself hiring employees,
upgrading and customizing her software, and
greatly increasing her marketing activities.
Anne soon realized that she couldn’t do it
all herself. Her key employees were increas-
ingly critical to her success. To help ensure
their loyalty and hard work, Anne decided to
give them an ownership interest in the busi-
ness. She accomplished this by forming a
closely held corporation, Digital Nail Inc. Ini-
tially Anne owned 100% of the stock, but un-
der the terms of a shareholders’ agreement,
half a dozen or so key employees receive
stock each year.
Although Anne will always remain the ma-
jority owner, over time each longtime em-
ployee will gain a significant share. If an em-
ployee leaves the company, his or her stock
will have to be sold back to Digital Nail at its
book (asset) value—considerably less than its
market value (assuming the business continued
to prosper and was sold or went public). In
short, not only does Anne’s plan give key em-
ployees a stake in the success of the company,
it provides a powerful incentive for them to
stick with Digital Nail.
1. Incorporators
The incorporators (called the promoters in some
states) do the preparatory work. This may include
bringing together the people and the money to cre-
ate the corporation. It always includes preparing
and filing the articles of incorporation—the formal
incorporation document that is filed with a state of-
fice such as the secretary of state. Although several
people can serve as incorporators and sign the ar-
ticles of incorporation, only one incorporator is re-
quired by law. Once the articles of incorporation
are filed, the incorporator’s job is nearly done. The
only things that remain to be done are to select the
first board of directors and to adopt the corporate
bylaws (although, in some states, bylaws may be
adopted by the directors).
2. Shareholders
The shareholders own the stock of the corporation.
One person can own 100% of the stock. Among the
things that only shareholders can do are these:
Elect directors (although the initial board of
directors is usually selected by the incorpora-
tor or promoter)
Amend bylaws
Approve the sale of all or substantially all of
the corporate assets
Approve mergers and reorganizations
Amend the articles of incorporation
Remove directors
Dissolve the corporation.
State laws typically require that the shareholders
hold an annual meeting. However, in many states, a
“consent action” or “consent resolution”—a docu-
ment signed by all of the shareholders—can be
used in place of a formal meeting.
3/4 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
For the corporation to elect S corporation sta-
tus under federal tax laws, all shareholders must
sign the election form that’s filed with the IRS.
(For more on this, see Section F, Step 12.)
3. Directors
The directors manage the corporation and make
major policy decisions. Among other things, the
directors authorize the issuance of stock; decide
on whether to mortgage, sell, or lease real estate;
and elect the corporate officers. Directors may
hold regular or special meetings (or both). How-
ever, in many states, it’s simpler and just as effec-
tive for the directors to take actions by signing a
document called a “consent resolution” or “con-
sent action.”
The incorporators or shareholders decide how
many directors the corporation will have. The
number of directors is usually stated in the articles
of incorporation or in the corporate bylaws. Most
states specifically permit corporations to have just
one director. In the remaining states, the require-
ment is that there be at least three directors, but
there’s an exception for corporations with fewer
than three shareholders. If there are only two
shareholders, the corporation can operate with
two directors; if there’s only one shareholder, the
corporation needs only one director.
EXAMPLE 1: Anita, Barry, and Clint create a
corporation in Michigan. They choose Anita
to be the sole director. They can do this be-
cause the law in Michigan—as in many other
states—permits a corporation to function with
a single director regardless of the number of
shareholders.
EXAMPLE 2: Dustin, Erwin, and Faye create
a corporation in California. They would like
Dustin to be the sole director, but California
law requires them to have at least three directors
if there are three or more shareholders; they can
have a single director only if the corporation has
a single shareholder. Therefore, Dustin, Erwin,
and Faye create a three-person board of direc-
tors and appoint themselves to those positions.
4. Officers
The officers are normally responsible for the day-to-
day operation of the corporation. State laws usually
require that the corporation have at least a president,
a secretary, and a treasurer. The president is usually
the chief operating officer of the corporation. The
secretary is responsible for the corporate records.
The treasurer, of course, is responsible for the cor-
porate finances, although it’s common to hand day-
to-day duties to a bookkeeper. The corporation can
have other officers—such as a vice president—as
well. In most states, one person can hold all of the
required offices.
EXAMPLE: Abdul forms a Texas corporation. He
provides for the two corporate offices—presi-
dent and secretary—that are required by Texas
law. He appoints himself to both offices. This is
legal in Texas and in most other states.
5. Employees
Employees work for the corporation in return for
compensation. In the small corporations we’re con-
sidering in this chapter, the owners (shareholders)
are usually also employees of the corporation.
It’s through your salary and other compensation
as a corporate employee that you’ll receive most of
your financial benefits from the business. Often the
person who runs the business day-to-day gets the
most compensation. This may or may not be the
president.
CREATING A CORPORATION 3/5
6. How It All Fits Together
If you’re new to all of this, the numerous compo-
nents of a corporation may seem unduly compli-
cated for a small business. Fortunately, it all fits to-
gether quite smoothly and easily.
EXAMPLE: Al, Bev, and Carla decide to form a
corporation to run a fitness center. Their plan is
to invest $10,000 apiece and be equal owners.
Since state law requires only one person to sign
the papers setting up the corporation, Bev signs
the Articles of Incorporation for ABC Fitness
Center Inc. and sends them to the secretary of
state’s office along with the filing fee. Bev is the
incorporator.
Next, Bev adopts bylaws for the corpora-
tion calling for a three-person Board of Direc-
tors. She elects herself, Al, and Carla to serve as
the first directors. The three of them then elect
Bev to be the president, Al to be the secretary,
and Carla to be the treasurer—so the three of
them are then the officers of the corporation.
When Al, Bev, and Carla each pay $10,000
into the corporate bank account, they each re-
ceive a stock certificate for 10,000 shares of cor-
porate stock; at that moment, they become
shareholders.
All three are active in running the business,
working 50 hours a week and receiving a sal-
ary. Al and Bev, who have experience as per-
sonal trainers, take charge of training customers
and supervising a small staff of other workers.
Carla, who studied business in college, looks
after the finances—billing customers, marketing,
ordering supplies. So in addition to their other
roles in the corporation, Al, Bev, and Carla are
employees.
B. Financing Your Corporation
It doesn’t take an MBA degree to grasp the funda-
mentals of corporate finance in the typical small
business. Assets come into the corporation in two
forms: equity and debt. Let’s look at each.
1. Funding Your Corporation
With Equity
Basically, equity means shareholders contribute
cash, valuable property, or services to the company
in exchange for stock in the company. The number
of shares issued is somewhat arbitrary, but the cus-
tomary practice in some places is for new corpora-
tions to issue one share for each dollar invested.
The most common way to pay for stock is with
cash. For example, you may put $5,000 into the
company in return for 5,000 shares of corporate
stock. But money isn’t the only thing that you can
invest in a company in return for stock. You may
also transfer physical assets, such as real estate or
equipment, or a copyright, patent, or trademark. Or
you may receive stock in return for past services to
the corporation.
Check before you transfer property for
stock. Before you transfer property to your
corporation in exchange for stock, check with your
tax advisor. If you receive stock for property that has
increased in value since you bought it, you may owe
taxes.
In some states, you can receive stock in return
for promising to perform services to the corpora-
tion, or in return for a promissory note. In other
words, you might receive 5,000 shares of stock in
return for your promise to work for the corporation
for 200 hours or to pay the corporation $5,000 six
months later. Not all states, however, permit stock
to be issued based on a promise of future services
or money, so check the rules of your state.
3/6 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
2. Funding Your Corporation
With Debt
The other major way to fund a corporation is
through debt—that is, by borrowing money. But
you should know that if your corporation borrows
from a bank or other outside lender, the lender will
probably expect you to personally guarantee to re-
pay the debt should the business be unable to.
Lending money to the corporation. Until
fairly recently, it was quite common for
shareholders in some new corporations to lend
money to the corporation or transfer assets from an
existing sole proprietorship in exchange for a prom-
issory note from the corporation. Shareholders
gained tax benefits by dividing their initial invest-
ment between debt (represented by promissory notes)
and equity (represented by stock certificates).
Changes in the tax laws, however, have eliminated
the shareholder loan as a viable option for purchas-
ing equity in a new corporation.
3. Leasing Property
to the Corporation
Sometimes you’ll want to retain ownership of prop-
erty being used by the corporation. For example,
maybe you own a garage or other small building
your company will occupy. With real estate, it’s
usually better, from a tax standpoint, to have your
corporation lease the property from you rather than
to transfer the property to the corporation.
EXAMPLE: Nino forms New Age Innovators
Inc. to develop some practical new technolo-
gies for the plumbing industry. He plans to
work out of his garage. He leases the garage to
his corporation for $500 a month. On his own
personal Form 1040, Nino will report the rent as
income and will deduct interest expense (for
the mortgage on the building) and depreciation.
On its corporate tax return, New Age Innova-
tors Inc. will deduct its rent payments and oper-
ating expenses for the garage.
If you lease property to the corporation, have
the directors adopt a board resolution approving a
lease. Then have the corporation sign the lease as
tenant with you, of course, as the landlord. This will
be helpful in establishing the existence of a lease if
the arrangements are questioned by the IRS.
C. Compensating Yourself
I’ve just discussed how you put money into the
corporation. Now let’s get to the fun part—how you
take it out.
1. Salary and Bonuses
As a corporate employee, you can receive a reason-
able salary plus bonuses which, for tax purposes,
are lumped in with salary. (Many corporate owners
prefer to pay themselves conservative salaries and
then to reward themselves with a year-end bonus if it
makes sense economically.) Salaries and bonuses
are treated as business expenses of the corporation,
which means that the corporation owes no tax on
what it pays you. You, in turn, report what you re-
ceive as income on your personal income tax return
just as you would if you worked for any other em-
ployer. The IRS has rules on how much salary is ap-
propriate—the primary one is that the salary must
be reasonable. This is a pretty loose standard and,
as a practical matter, doesn’t affect most small busi-
ness people, because their businesses can’t afford to
pay them the sort of stratospheric salaries the IRS
might consider unreasonable.
2. Interest on Loans
to the Corporation
If you lend money or property to the corporation
when it’s underway in exchange for a promissory
note, you’ll receive interest on your loans. Hopefully,
the corporation will repay you the principal amount of
the loans as well. But you’ll have to pay tax only on
the interest you receive—not on the principal portion.
CREATING A CORPORATION 3/7
Minimum interest. Any loan between a
corporation and an employee or stockholder
for more than $10,000 must carry a minimum inter-
est rate. The rate is based on U.S. Treasury Bill rates.
The loan type also determines whether other require-
ments must be met. Check with your tax advisor for
details.
3. Fringe Benefits
Another way to profit from your investment in the
corporation is through fringe benefits. For example,
your corporation may purchase health insurance for
employees and set up a plan under which the corpo-
ration reimburses employees for medical expenses
not covered by insurance. Health insurance premi-
ums and medical reimbursements paid by the corpo-
ration are tax-deductible business expenses for the
corporation—and aren’t taxable to the employee as
personal income. By contrast, if you were to pay for
medical expenses with no corporate help, only a lim-
ited amount would be tax-deductible on your per-
sonal income tax return.
S Corporations Note. S corporations are
treated differently under the tax laws. Fringe benefits
for an owner-employee who owns more than 2% of
the stock of an S corporation are not given this favor-
able tax treatment.
4. Dividends
You’ve probably heard about corporate dividends
paid to shareholders. This is another way that funds
can be removed from a corporation for the benefit of
its owners. Perhaps surprisingly, it is rarely done in a
small corporation. Because the corporation can’t de-
duct dividends as a business expense, dividends add
up to double taxation. (This doesn’t apply to S corpo-
rations; see Chapter 1, Section C.) The corporation is
subject to tax on money paid as dividends, and then
the shareholder is taxed a second time. To avoid this
double taxation, it’s much better to take money out
of the corporation through the means previously dis-
cussed.
D. Do You Need a Lawyer
to Incorporate?
It’s possible to form your own corporation without
professional help. Every day, many entrepreneurs do
exactly that by using an incorporation kit. If you’re in-
clined to go this route, check out How to Form Your
Own California Corporation or Incorporate Your
Business: A 50-State Legal Guide to Forming a Cor-
poration, both by Anthony Mancuso (Nolo). These
books provide information about incorporating, even
if you decide not to do it yourself.
The obvious motivating factor for setting up a cor-
poration on your own is to save on legal fees, which
can range from $1,000 to $2,000 or more, depending
on where you live. But be aware that there’s a tradeoff:
you’re subjecting yourself to bureaucratic hassles and,
unless you do your homework carefully, possible er-
rors. The paper-filing phase, by itself, isn’t all that diffi-
cult. But tax and legal liability problems may not be
obvious to the do-it-yourselfer. And if you plan to
issue stock to other than a few people who will work
in the business or are close friends and relatives, secu-
rities laws can be troublesome.
Still, dollars are often precious to people just start-
ing out in business, and you may decide that it’s
worthwhile to attempt to form your corporation by
yourself. If you choose that route, it’s a good idea to
have a lawyer experienced with small businesses look
over the final documents before you file them. (Chap-
ter 24 discusses finding, hiring, and working with a
lawyer.) You should be able to find a lawyer willing
to do this at a fraction of the cost of having the lawyer
handle the matter from beginning to end.
Beware of securities law.
If you’ll have a
number of shareholders—especially people who
won’t be working in the business and who are not close
relatives living in your state—consult a lawyer to see
that you’re in compliance with federal and state securi-
ties regulations. (See Section E, below.) While most small
businesses are considered to be closely held corpora-
tions and exempt from these potentially complicated
regulations, it’s worth spending a few bucks to find
out for sure. Anthony Mancuso’s how-to-incorporate
books, mentioned above, discuss this issue in detail.
3/8 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
E. Overview of
Incorporation Procedures
While there are differences from state to state, the
basic procedures that you or your lawyer will fol-
low in creating a corporation are these:
Prepare and file the articles of incorporation
Select a board of directors
Adopt bylaws
Elect officers
Issue stock
Decide whether or not you want to elect
S corporation tax status.
In a moment, we’ll walk through the incorpora-
tion process. Before we do, let’s look at one addi-
tional step to consider before starting to incorpo-
rate: a preincorporation agreement. It may be un-
necessary if you’re planning a one-person corpora-
tion or if your corporation consists only of family
members. Similarly, a preincorporation agreement is
less necessary if you and your associates are incor-
porating an existing business or if you’ve done
business together before. However, if you’re going
into business with relative strangers, putting your
agreement in written form will help you avoid dis-
putes later or, if an argument does arise, will pro-
vide a basis for resolving it through arbitration or
litigation. (See Chapter 22.) Your written agreement
should include these key points:
the name of the corporation
its purpose
how much stock each person will buy and
how he or she will pay for it
what loans each person will make to the cor-
poration and the terms of repayment
what offices (president, vice president, secre-
tary, treasurer) each person will hold
what compensation each of you will receive
what expense accounts each of you will have
what fringe benefits will be available.
If the corporation is going to lease real estate or
other property from one of the owners, the agree-
ment can also outline the terms of that transaction.
Another major topic to cover in either a pre-
incorporation agreement or a separate buy-sell
agreement is what happens if a shareholder wants
to retire from the corporation or gets sick or dies or
just wants to sell his or her stock. Will the corpora-
tion or the remaining shareholders be obligated to
buy the stock? How will the price be set? Can the
stock be sold to outsiders?
These are difficult and important issues—and it’s
much better to think them through and arrive at a
written agreement at the beginning of the corpora-
tion’s life rather than wait until a crisis arises. If you
don’t have an agreement in place, you risk the pain
of personal and business discord, and possibly even
expensive, disruptive litigation.
I cover buy-sell agreements more in
Chapter 5. Also, you can easily put together a
solid agreement covering shareholder issues if you
consult Business Buyout Agreements: A Step-by-
Step Guide, by Anthony Mancuso & Bethany
Laurence (Nolo).
Chapter 2 of
Legal Forms for Starting &
Running a Small Business
contains a pre-
incorporation agreement.
Where to incorporate—beware the
Delaware myth. Many people are sold on
the notion that there’s something magical about in-
corporating in Delaware. The reality is that the best
state to incorporate in is the state where your head-
quarters is located. For the vast majority of small
business corporations, that means the state where
you live. If you incorporate in Delaware you’ll still
have to register as an out-of-state corporation to do
business in your own state.
F. Twelve Basic Steps
to Incorporate
The following outline will help you understand how
to go about forming a corporation for your small
business. The procedure for incorporating is simi-
lar—but not identical—in every state.
CREATING A CORPORATION 3/9
Step 1. Choose a Name
In Chapter 6, you’ll find more detail about selecting
a business name. But here are a few basics about
naming a corporation.
In most states, to alert the public to your corporate
status you must include certain words in your corpo-
rate name, such as Incorporated, Corporation, Com-
pany, or Limited, or the abbreviations Inc., Corp., Co.,
or Ltd. And there are certain words you can’t use in
your name; for example, in California, the words Na-
tional, United States, and Federal are prohibited. In
New York, you need the approval of a department of
state government to use the words Benefit, Council,
Educational, or Housing in your corporate name.
The quickest way to learn what words are re-
quired or prohibited in your state is to call or write to
the office where you file the articles of incorpora-
tion—usually the secretary of state or corporation
commissioner’s office. In the few states where they’re
unwilling to help you, the best approach (short of
calling your lawyer) is to go to a law library and
check the state statute (“code”) sections dealing with
corporations. For more on law libraries, see Chapter
24, Section D. Because you’ll probably want to con-
sult these laws frequently, you may want to buy a
set from the state or a private publisher.
Most states will reject a corporation name that’s
the same as one already on file or one that’s confus-
ingly similar to the name of an existing corporation.
But even if the Secretary of State accepts your corpo-
rate name (or tells you it’s available in a prefiling
name reservation procedure), this doesn’t guarantee
your legal right to use it. An unincorporated business
may already be using it as its trade name, or a busi-
ness may be using it as a trademark or service mark
to identify products or services. In short, as is dis-
cussed in Chapter 6, there is a good deal more to do
to check out the availability of a particular name.
Before you file your corporate papers, check
with your state’s corporate filing office. Generally
they can make a preliminary check and tell you if
the name is available. If you expect some delay be-
fore the papers are actually filed, find out whether
your state permits you to reserve a name. Many will
reserve a name for you for a month or more.
What happens if you’ve got your heart set on a
name but find that it’s too similar to one already in
use? One approach is to change it slightly. Most state’s
name records are computerized, and often a fairly
small modification will turn rejection to approval. Or
you can ask the owners of the other business to let
you use the similar name. In many states you can use
such a name if you get the written consent of the cor-
poration that was established earlier.
In many states, a corporation can do business un-
der an assumed or fictitious name. For example, if you
incorporate as Miller Manufacturing Company but
want to market some of your products under a more
specific business name, you can simply file an as-
sumed name certificate for Miller Appliances. Some
states require that you file this paper at the same state
office where you filed the articles of incorporation
(such as the secretary of state’s office). In other states,
you file your fictitious or assumed name certificate in
the counties where your company does business. And
some states require that you also publish notice of
your assumed or fictitious name in a newspaper.
Using your corporate name as a trade-
mark. If you plan to use your corporate
name as a trademark or service mark for products
or services, you won’t want a name that’s very simi-
lar to someone else’s. As explained further in Chap-
ter 6, even if your name were approved by your cor-
porate filing office, it might infringe the other user’s
trademark or service mark.
Step 2. Prepare and File Articles
of Incorporation
As noted above, in some states articles of incorpora-
tion are called certificates of incorporation, charters,
or articles of association. Here I’ll stick with the
term “articles of incorporation.”
In many states, the secretary of state can give
you a printed form for the articles of incorporation;
all you have to do is fill in some blank spaces. In
other states, you must prepare the articles of incor-
poration from scratch.
3/10 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
Below is an example of articles of incorporation for a California corporation.
SAMPLE ARTICLES OF INCORPORATION
ARTICLES OF INCORPORATION
OF
ONE: The name of this corporation is ________________________________________
TWO: The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be
organized under the General Corporation Law of California other than the banking business, the trust company
business, or the practice of a profession permitted to be incorporated by the California Corporation Code.
THREE: The name and address in this state of the corporation’s initial agent for the service of process is:
FOUR: This corporation is authorized to issue only one class of shares of stock which shall be designated common
stock. The total number of shares it is authorized to issue is _______ shares.
FIVE: The names and addresses of the persons who are appointed to act as the initial directors of this corporation are:
Name Address
________________________________________ ____________________________________________________
________________________________________ ____________________________________________________
________________________________________ ____________________________________________________
________________________________________ ____________________________________________________
________________________________________ ____________________________________________________
SIX: The liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent
permissible under California law.
SEVEN: The corporation is authorized to indemnify the directors and officers of the corporation to the fullest extent
permissible under California law.
IN WITNESS WHEREOF, the undersigned, being all the persons named above as the initial directors, have
executed these Articles of Incorporation.
Dated: ________________________ _____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
The undersigned, being all the persons named above as the intial directors, declare that they are the persons who
executed the foregoing Articles of Incorporation, which execution is their act and deed.
Dated: ________________________ _____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
CREATING A CORPORATION 3/11
While details vary from state to state, the typical
articles of incorporation include:
the corporation’s name
its purpose
the name of the “initial agent for service of
process” (sometimes called a registered agent
or resident agent)
the number of shares authorized
the names and addresses of the incorporators.
The purpose clause may seem confusing—it’s as
if you’re being asked to define what your business
will do until the end of time. Fortunately, this isn’t
necessary, because the statutes in many states allow
you to use very general language, such as: “The pur-
poses of this corporation shall be to engage in any
lawful act or activity for which corporations may be
organized under the business corporation law.”
If such a statement is permitted in your state, it’s
usually best not to be any more specific. This leaves
you free to change the nature of your business
without amending the articles of incorporation. It
also helps you avoid questions of whether you’re
acting beyond the scope of your stated purpose if
you go into a new business.
Most states require you to designate somebody
as a resident agent or registered agent in the articles
of incorporation. This is the person who is autho-
rized to receive official notices and lawsuit papers.
Normally, you designate the corporate president as
this person. If you change the person named or if
there’s a new address, you need to notify the secre-
tary of state’s office by filing a proper form.
It may take a few weeks for your articles of in-
corporation to be processed by the secretary of
state’s office. If you need quicker action, check to
see if expedited handling is available. In some
states, you can file your articles of incorporation in
person and have the filing process completed
within a day. Sometimes, articles of incorporation
sent by UPS, Federal Express, or other overnight
means are treated as in-person filings and given ex-
pedited treatment.
If you need to sign contracts, such as a lease,
even before the corporation has been formed, it’s a
good idea to state in the contract that you’re acting
on behalf of a corporation to be formed and that
the contract is subject to ratification by the board of
directors of the new corporation. Then, if for some
reason the corporation is never formed or if the di-
rectors fail to ratify the document, you’re free from
personal liability. Here is sample language for such
a lease.
Landlord acknowledges that Martin Green is
signing this lease on behalf of XYZ Corporation
(a corporation to be formed) and that this lease is
subject to ratification by the corporation’s Board
of Directors. If the corporation is not formed or if
the Board of Directors fails to ratify this lease
within 30 days of the present date, this lease will
be void. In no event will Martin Green have any
personal liability under this lease.
If this approach is not acceptable to the person
with whom you’re contracting, another possibility is
to sign the contract in your own name—thereby as-
suming personal liability temporarily—but to spe-
cifically reserve the right to assign it to the corpora-
tion later, as in the sample that follows.
Incorporation Fees
Each state imposes a fee or a combination of
fees for incorporating. Some states also require
an initial tax payment. The total amounts vary
widely, from $50 to $1,000. To find out your
state’s fees, call the corporate filing office (usu-
ally a branch of the governor’s office in your
state capital). In some states the information is
also available online: try exploring your state’s
website via www.50states.com. (Click on the
name of your state, then, when an information
screen pops up, click on the large box contain-
ing your state’s name to be taken to your
state’s own government website.)
3/12 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
Landlord grants to Martin Green the right to
assign this lease to XYZ Corporation, a corpora-
tion to be formed. Upon Landlord’s receipt of
written notice that such assignment has been
made, Martin Green will automatically be
released from any personal liability under this
lease.
SAMPLE DESIGNATION OF DIRECTORS BY INCORPORATOR
ACTION BY INCORPORATOR
OF XYZ CORPORATION
The Incorporator of XYZ Corporation, a Pennsylvania corporation, designates the following people to serve as the initial Board
of Directors of the Corporation:
Joyce Barker
Lloyd Epstein
Norton Phillips
Dated:______________________ ___________________________________________________________________
Joyce Barker, Incorporator
Step 3. Elect the First Board
of Directors
In some states, initial directors are designated in the
articles of incorporation. In other states, the incor-
porator or incorporators choose the first board of
directors. If this is the practice in your state, be sure
to document the appointment of directors with a
statement or certificate signed by the incorporators.
This statement or certificate, which will be inserted
into your corporate record book, may look some-
thing like the one below.
CREATING A CORPORATION 3/13
Step 4. Adopt Bylaws
The corporate bylaws contain much more detail
than the articles of incorporation. They spell out the
rights and powers of the shareholders, directors,
and officers of the corporation.
Typically the bylaws state the time and place for
the annual meeting of shareholders, how much no-
tice of the meeting is given, and what constitutes a
quorum. There are also provisions for special meet-
ings to consider issues so important they can’t wait
for the next annual meeting and a statement about
what actions the shareholders can take by written
consent without a formal meeting. Bylaws provide
how many directors there are, how they’re elected,
what their powers are, and if and how they’re com-
pensated. Titles of the corporate officers (generally,
a president, secretary and treasurer) are listed in the
bylaws.
The bylaws may also cover matters such as who
is authorized to sign contracts, who has the right to
inspect corporate books and records (and under what
conditions), the fiscal year of the corporation, and
how the bylaws can be amended.
In a few states the incorporators must adopt the
bylaws; in others, the directors must adopt them.
And in still other states, you can choose between the
two methods. If the incorporators adopt the bylaws,
be sure to document this in a signed statement or
certificate. If the directors adopt the bylaws (see be-
low), reflect this action in your minutes of the first
directors’ meeting; or, if you don’t hold a meeting,
in a written consent resolution of the directors.
Chapter 2 of
Legal Forms for Starting &
Running a Small Business
contains
sample bylaws.
Step 5. Hold a Directors’ Meeting
The directors must do a number of things at the begin-
ning to get the corporation on the right track. Histori-
cally, corporations have recorded these actions in a
document called “minutes of first meeting of the board
of directors.” These minutes were written in language
reflecting a formal parliamentary procedure that really
doesn’t match the less formal style of most small
businesses.
Fortunately, in most states, there’s a streamlined
method for accomplishing this. You or your lawyer
can prepare a consent form to be signed by the
board of directors such as the one below.
3/14 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
SAMPLE CONSENT FORM FOR DIRECTORS
XYZ Corporation consent of the board of directors
The directors of XYZ Corporation consent to the following:
1. BYLAWS: The attached bylaws shall be the bylaws of the corporation.
2. OFFICERS: The following people are elected to serve as officers of the corporation for the next year,
or until their successors are elected:
President:________________________________________________________________________________
Secretary:________________________________________________________________________________
Treasurer:________________________________________________________________________________
3. ISSUANCE OF STOCK CERTIFICATES: The President and Secretary are authorized and directed to issue
stock certificates in the following amounts upon receipt of payment from the designated shareholders:
Name Number Amount
of Shares to be Paid
1. _______________________________________________________ _________ _________
2. _______________________________________________________ _________ _________
3. _______________________________________________________ _________ _________
4. LEASE: The President is authorized and directed to enter into a three-year lease of space in
The Village Green on the terms set out in the attached memorandum.
Dated:______________,20_______________________________________________________________
Director #1
Dated:______________,20_______________________________________________________________
Director #2
Dated:______________,20_______________________________________________________________
Director #3
What actions should the board of directors take
at its first meeting, either in formal minutes or
through a consent resolution? The following are
typical:
adopt bylaws
designate corporate officers
approve the form of stock certificate
adopt the first fiscal year
authorize issuance of stock
approve lease
approve employment contracts
adopt a shareholders’ agreement (buy-sell
agreement—see Chapter 5).
Step 6. Set Up a Corporate
Bank Account
Remember, your corporation is a legal entity sepa-
rate from its shareholders, directors, and officers.
For that reason, the corporation needs its own bank
account so that its finances can clearly be kept
separate.
If you’re incorporating an existing business that
already has a bank account, I recommend that you
start fresh and set up a new bank account for the
corporation. The bank will ask for a corporate
board of directors’ resolution authorizing the new
CREATING A CORPORATION 3/15
account and an Employer’s ID Number. (Employer’s
ID Numbers are discussed in Chapter 8, Section A.)
If you decide to simply continue the old ac-
count, do the following:
Find out the bank’s procedures for changing
a sole proprietorship or partnership account
into a corporate account. Most likely, the
bank will want your directors to adopt a spe-
cific resolution, using language the bank will
supply. The bank will want to see your ar-
ticles of incorporation and a copy of the
banking resolution. You’ll also be asked to
provide your Employer’s Identification Num-
ber (issued by the IRS). You may not have
this immediately, and the bank will probably
let you start using the account for the corpo-
ration if you assure them that you’ve applied
for the ID number.
Keep detailed records showing exactly how
much money was in the account when it was
changed over to the corporation. Also keep
track of any checks that were written by your
existing business but haven’t cleared yet.
These checks should be treated as expenses
of the unincorporated business and deducted
from the amount considered transferred to the
corporation. Preparing and retaining these
records will save you headaches a year or
two down the road when you try to figure
out exactly what was transferred to the corpo-
ration.
Step 7. Issue Stock
The corporation should issue a stock certificate to
each shareholder. The certificate is evidence of the
shareholder’s ownership interest in the corporation.
Filling out the stock certificate is simple. Your main
legal concern is whether you need to do anything
to comply with federal or state securities laws.
Federal securities laws are administered by the
Securities and Exchange Commission (SEC). In addi-
tion, each state has its own law regulating the sale
of securities, intended to protect passive investors—
people who put money into a corporation but are
not active in the day-to-day operations of the busi-
ness.
The bad news is that both the federal and state
requirements are very complicated. The good news
is that, as discussed earlier, the typical small corpo-
ration—consisting solely of investors who are ac-
tively involved in the day-to-day operation of the
company, and often their close relatives—is com-
pletely exempt from the complicated requirements.
Nevertheless, some paperwork may be involved.
For example, it’s frequently advisable to give a
“shareholder representation letter” to each prospec-
tive shareholder, even though it isn’t strictly re-
quired under the state’s securities laws. The letter
gives you a way to confirm the purchaser’s reasons
for believing the transaction is exempt from the
state’s securities laws.
EXAMPLE: Edgewater Inc. has been formed to
build and operate a restaurant on the shore of a
scenic lake. Chester, a wealthy investor who
has been a partner in three major deals with
Todd, the president of Edgewater Inc., is going
to invest $75,000 in the new corporation and
receive 75,000 shares of stock. To qualify a
stock purchase as exempt under the state’s “lim-
ited offering exemption,” the purchaser must be
one of the following: an insider shareholder (a
director, officer, or promoter of the corpora-
tion); someone who’s had a preexisting busi-
ness or personal relationship with the corpora-
tion or one of its officers; or a “sophisticated
investor.” (Sophisticated investors are those
who, because of their business or financial ex-
perience, are in a good position to protect their
interests when buying stock in a new corpora-
tion.) Chester qualifies as both a sophisticated
investor and one who’s had a preexisting busi-
ness relationship with the corporate president.
Todd prepares a shareholder representation letter
reciting these facts for Chester to sign.
3/16 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
Californians can obtain sample shareholder rep-
resentation letters and reliable information on how
to prepare them for their corporation (as well as
blank stock certificates), from How to Form Your
Own California Corporation, by Anthony Mancuso
(Nolo).
Before you issue a stock certificate, make sure
that the corporation has actually received payment
for the shares. For example, if the shares are being
purchased for cash, the corporation should receive
the money before issuing the shares. If the corpora-
tion is issuing the stock in return for a promise of
future payment by the shareholder (a practice al-
lowed in some states but not others), the corpora-
tion should have in its possession a promissory note
from the shareholder. If property is being transferred
to the corporation in exchange for stock, the person
transferring the property should sign a bill of sale
for the property at the same time the corporate
shares are issued.
Step 8. Complete Any Initial
Financial Transactions
Tie up any other loose ends relating to the financ-
ing of the corporation. As noted earlier, your corpo-
ration may borrow some of its startup money from
friends, relatives, or other lenders. The corporation
should issue written promissory notes as evidence
that loans have been made. In addition, if you’re
leasing a building or equipment to the corporation,
sign a lease.
Step 9. Set Up a Corporate
Record Book
You can create a corporate record book in an ordi-
nary loose-leaf binder. A more official looking way
to do it is to buy a corporate record book from Nolo
or a local stationer. These usually come with stock
certificates and an embossed corporate seal.
The main items that you’ll keep in the corporate
record book are the articles of incorporation, the
bylaws, the minutes of meetings (or consent resolu-
tions), and the stock certificate stubs or ledger
sheets showing who received the stock certificates
and when. In many small corporations, sharehold-
ers prefer the convenience of simply leaving the
completed stock certificates in the corporate record
book even though each shareholder is, of course,
entitled to possession of his or her certificate.
Step 10. Follow Through on State
Government Requirements
Your state may require that you file documents in
addition to the articles of incorporation. For ex-
ample, in New York, you need to file a stock regis-
tration certificate certifying that you “keep a place
for the sale, transfer, or delivery of your corporate
stock” at a certain address (normally your corporate
offices). In California, you need to file a notice of
stock transaction within 15 days after your first sale
of stock and “an annual statement of domestic stock
corporation” within 90 days after you file your ar-
ticles of incorporation. To learn about requirements
in your state, contact your corporate filing office.
Step 11. Comply With the
Bulk Sales Act
If shareholders transfer assets of an existing busi-
ness to the new corporation in return for stock,
there may be some special requirements. Six
states—California, Georgia, Indiana, Maryland, Vir-
ginia, and Wisconsin—have bulk sales laws de-
signed to prevent business owners from secretly
transferring their business assets to another com-
pany to avoid paying creditors. These laws apply
mainly to retail, wholesale, and manufacturing busi-
nesses. Basically, bulk sales laws require you to no-
tify creditors that the assets of the business are be-
ing transferred.
Fortunately, state laws usually provide for some
exemption or shortcuts when the assets are being
transferred to a new corporation that will be taking
CREATING A CORPORATION 3/17
over and continuing an existing business. A key ele-
ment generally is that your new corporation agrees
to take over the business debts of the existing com-
pany. If you’re forming a corporation to take over
and continue a business formerly run as a sole pro-
prietorship or partnership, compliance with the bulk
sales law should be relatively easy.
Step 12. File S Corporation Election
As discussed in some detail in Chapter 1, an S cor-
poration is simply a corporation that decides to be
taxed as a partnership. That is, it’s not a separate
tax entity like a regular corporation. Instead, the
profits and losses of the corporation flow through to
the individual shareholders who report them on
their individual tax returns.
For purposes of incorporating under state law,
the procedure is the same whether you’re a regular
corporation or an S corporation. But to become an
S corporation, you need to file a form with the IRS.
This is Form 2553, Election by a Small Business Cor-
poration. All of the shareholders must sign this form.
If you want to have S corporation status during
the first tax year that your corporation exists, you
need to file the election form before the 15th day of
the third month of your tax year. In other words,
you have a two-and-a-half month window during
which you can file the election. When does your
tax year start? For a new corporation, your tax year
starts when your corporation (1) has shareholders,
(2) acquires assets, or (3) begins doing business,
whichever happens first. If you miss the deadline,
you have to wait until the next tax year to file the
election form.
G. After You Incorporate
This chapter concentrates on steps you need to take
to form your corporation. What must you do after
incorporating? Obviously, you need to comply with
federal and state tax filing rules. (See Chapter 8.)
Your business may also need to get business li-
censes and permits. (See Chapter 7.) And it’s smart
to buy insurance before you begin doing business.
(See Chapter 12.)
In addition, corporations must file an annual re-
port with the state’s corporate filing office. Typically
this is a form sent to you by the corporate filing of-
fice which requires you to update information about
corporate officers and location. Simply fill it out and
return it with the necessary fee. If you forget to
send the form back, your corporation may face
fines and penalties and may even be automatically
dissolved.
H. Safe Business Practices for
Your Corporation
Last week you were the sole proprietor of a cater-
ing business you called Feasts On The Go. Today
you own all the stock of a new corporation, Feasts
On The Go, Inc. In addition, you’re the corpora-
tion’s director, president, secretary, and treasurer.
Or maybe last week you and Emily were part-
ners in a used record shop called Around Again.
Today you each own 50% of the stock in a new
corporation called Second Time Around, Incorpo-
rated, which is running the old partnership busi-
ness. Emily’s the president, you’re the secretary-
treasurer.
What has changed? On a day-to-day level, not
much. You still show up at the same place each day
and do the same kind of work you did before you
incorporated. In fact, your before- and after-incor-
poration lives will probably be so similar that it will
be easy to forget the fact that you’re now working
for a corporation that is a separate legal entity.
But forgetting can be risky. If you’re careless
about maintaining the separation between the cor-
poration and yourself, you can jeopardize your tax
benefits or your freedom from personal liability—
the main reasons to incorporate in the first place.
While it’s rare for a judge to disregard a corporation
and impose personal liability on a shareholder, it
3/18 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
does happen. When it does, it’s almost always in a
small corporation where the owners have allowed
the line between the corporation and the sharehold-
ers to get very fuzzy or disappear.
Also, the IRS has the power to decide that a cor-
poration is a sham if you fail to maintain it as a sepa-
rate legal entity. Consider the following actual case:
For 15 years, Walter Otto ran an export-import
business in San Francisco. Then he incorporated
his business. He filed articles of incorporation
with the California Secretary of State for “Otto
Sales Company Inc.” Next he invested $50 in the
corporation. A few years later, the business be-
came insolvent. A salesman sued for unpaid com-
missions, naming both the corporation and Walter
as defendants. After a trial, the judge ordered
Walter himself to pay the salesman over $18,000.
Doing business through a corporation didn’t pro-
tect Walter from personal liability.
What Did Walter Do Wrong? Several things:
He never issued any stock certificates to him-
self or anyone else.
He contributed only $50 to the corporation as
his “equity” in the business. (For more on eq-
uity and how to structure the financial side of
a corporation, see Section B, above.)
He continued to use the same sales contracts
that he used before he incorporated. These
contracts said “W.E. Otto” at the top.
At the bottom (for seller’s signature), the
contracts said: “W.E. Otto, by
__________________________, Sellers.”
In the judge’s view, Walter formed the corpora-
tion solely for his personal convenience and did not
treat it as a real entity. So the judge “pierced the
corporate veil” to make Walter personally liable for
the debt. Shafford v. Otto Sales Company, 308 P.2d
428 (Cal. App. 1957).
Here are two more cases in which the owners of
small corporations were found personally liable:
J.C. Chou formed Oriental Fireworks Inc., a
corporation that grossed from $230,000 to
$400,000 annually. Its assets, however, never
exceeded $13,000, and the company never
bought liability insurance. Gregory Rice was
seriously injured by fireworks distributed by
the corporation. He sued and was awarded
$432,000. Since the corporation lacked funds
to pay the judgment—and didn’t carry insur-
ance—the court ruled that J.C. was personally
liable.
J.C.’s Main Mistake: Failing to provide even mini-
mally adequate funds to the corporation (in legal
lingo, failing to adequately capitalize the corpora-
tion) or to carry proper insurance. Rice v. Oriental
Fireworks Co., 707 P.2d 1250 (Or. App. 1985).
Dusty Schmidt and Terry Ulven were partners
in a business called Western Oregon Christ-
mas Trees. At Christmas time, the partnership
rented tents from the Salem Tent and Awning
Company to display their trees. Later, Dusty
and Terry formed a corporation—Western Or-
egon Christmas Trees Inc. They continued to
rent tents from Salem but didn’t sign rental
agreements or checks as corporate officers.
When several tents were destroyed by a
storm, Salem sued the corporation and was
awarded a judgment of $12,500. The court
ruled that Dusty and Terry also were person-
ally liable for the judgment.
Dusty’s and Terry’s Main Foul-ups: Dusty and
Terry made a $2,000 down payment on the
tents using a check from their previous part-
nership—not from the corporation. Also, the
pair commingled (mixed together) personal
and corporate assets and failed to keep cor-
porate records. Salem Tent & Awning v.
Schmidt, 719 P.2d 899 (Or. App. 1986).
Even though these cases had unhappy endings
for the owners of the small corporations, doing
business as a corporation isn’t all that dangerous.
There are several simple steps you can take to pre-
serve your corporate status so that you don’t have
to lie awake nights worrying about personal liabil-
ity. These steps are not time-consuming—and they
make good business sense.
CREATING A CORPORATION 3/19
1. Put Adequate Capital Into
Your Corporation
Put in enough money and other assets to meet your
foreseeable business requirements. The amount, of
course, varies from business to business. What’s
reasonable to start a video store that requires a con-
siderable inventory of films, a retail location, and
several employees may be vastly different than
what’s reasonable to start a typing service, which
may need little more than a personal computer,
printer, modem, and copy and fax machines. See if
you can get a recommendation from your accoun-
tant or someone in the same business.
2. Insure Against Obvious Risks
Try to determine whether there’s a substantial risk
of customers or others being injured because of
your business. If so, it’s wise to obtain a reasonable
amount of coverage. (See Chapter 12 for more on
insurance.) There have been some cases—not
many—in which a judge has felt that the failure of
owners of a small corporation to buy insurance that
was reasonably available was so reckless that it was
a factor in disregarding the corporation and holding
its owners personally liable.
EXAMPLE: Eunice owns all the stock in a cor-
poration called Roadside Enterprises Inc. The
corporation sells and installs tires. It’s obvious
that an improperly installed tire can cause a se-
rious accident. What if a Roadside employee
forgets to tighten the lugs on a newly installed
tire and the tire falls off, causing the driver to
swerve into a tree? If the driver is killed, his or
her family will probably sue Roadside. And if
the corporation doesn’t have reasonable insur-
ance coverage (and hasn’t set up a reasonable
reserve fund), a judge could rule that Eunice
has some personal liability—even though she
wasn’t even at the tire store when the employee
was inattentive.
Basically, it’s a matter of exercising reasonable
business judgment. If your business involves the
risk of injury and you can buy liability insurance at
a reasonable price, I recommend that you do so.
On the other hand, if affordable insurance isn’t
available—an unfortunate reality in some industries
today—it’s highly unlikely that a judge would find
fault with the owners of the corporation for not in-
suring against the risks.
3. Observe Corporate Formalities
Another way to protect yourself from the possibility
that your corporation could be disregarded by a
court is to always take it seriously yourself. Issue
stock certificates to the shareholders before your
corporation starts doing business. Keep a corporate
record book containing your articles of incorpora-
tion, stock records, bylaws, and minutes of share-
holders’ and directors’ meetings. Comply with state
law requirements that you hold annual meetings of
shareholders or act by signed consent actions or
resolutions. Either way you should document all
actions taken, such as election of officers for the
next year.
Conference Calls. If it’s not convenient for all
the directors to meet at the same place, many states
allow them to participate through a conference call.
Follow up by documenting the telephone meeting
in writing as soon as possible and sending a copy
to each director.
Keep in mind that the annual meetings are mini-
mum requirements. While it’s not necessary or ap-
propriate to write up minutes or consent actions for
every conference you have with your colleagues, if
you take significant corporate actions during the
year, it’s wise to document them through minutes of
a special meeting or a consent action form. Keep
the minutes and consent actions in your corporate
record book.
Here are some types of business activities that
you should document with minutes of a directors’
3/20 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
meeting or a signed consent action form signed by
the directors:
authorizing corporate bank accounts and des-
ignating who is eligible to sign checks and
withdraw funds
determining salaries and bonuses of officers
contributing to pension and profit-sharing
plans
acquiring another business
borrowing money
entering into major contracts
buying, selling, or leasing real estate
adopting or amending employee fringe ben-
efits plans
applying for trademark registration.
Chapter 3 of
Legal Forms for Starting &
Running a Small Business
contains vari-
ous forms for running your corporation.
4. Separate Your Personal
Finances From the Corporation’s
The corporation needs its own bank account. (See
Section F, Step 6.) Don’t use the corporate bank ac-
count to pay your personal expenses. Get salary
checks on a regular basis from the corporation (de-
ducting employee withholding taxes); deposit the
checks in your personal account; and then pay your
own bills.
If you use personal funds to pay business ex-
penses—for example, you pick up a ream of typing
paper while you’re out for lunch—you can have the
corporation reimburse you, but be sure the corpora-
tion keeps the receipt for the paper to justify the
payment as a proper business expense.
To further preserve the distinction between you
and the corporation, document all transactions as if
you were strangers. If the corporation leases prop-
erty from you, sign a lease. If the corporation bor-
rows money from you, get a promissory note. If
you sell property to the corporation or use your
property to buy stock, sign a bill of sale or other
legal document formally transferring legal title to
the corporation.
5. Use the Correct
Corporate Name
Suppose the name of your corporation is The A.B.
Smith Fitness Store Inc. Use that full business name
in all your business dealings—on your stationery,
business cards, and phone book listings, on your
signs, in catalogues, and on the Internet. Be careful
not to use a different or abbreviated version (such
as Smith Fitness Center) unless you file an assumed
name certificate or fictitious name certificate as per-
mitted by state law. (For more on corporate names,
see Section F and Chapter 6.)
6. Sign Documents as a
Corporate Officer
In correspondence and on checks, sign your name
as William Jones, President, along with the full
name of your corporation, rather than just William
Jones. This makes it clear to those who deal with
you that you’re acting as an agent or employee of
the corporation and not as an individual. Follow
this practice on any other documents you sign, such
as contracts, order forms, and promissory notes.
SAMPLE SIGNATURE OF CORPORATE OFFICER
JONES BAKERY INC.
By:_______________________________________
William Jones, President
In some cases, you may have to sign the contract
or promissory note personally as a guarantor. For
example, banks usually won’t lend money to a
small corporation without the personal guarantees
of the principals, and some extra-cautious landlords
may insist on similar guarantees for leases. But even
if you have to accept personal liability for some cor-
porate obligations, it’s better to do this as a guaran-
tor than as the main signer. The reason: The guar-
antee provides further evidence that you and the
corporation are separate legal entities.
CREATING A CORPORATION 3/21
7. Assign Existing Business
Contracts to the Corporation
If you incorporate an existing business (such as a
sole proprietorship or a partnership), the old business
may have contracts still in effect, which the corporation
will take over. For example, maybe the prior business
leased space and the lease still has a year to go. Or
maybe you’re a computer consultant and, as a sole
proprietor, you’d just gotten started on a contract to
design customized billing software for a medical clinic.
It’s usually a good idea to formally transfer these
contracts to the corporation. Generally, unless the
contract expressly prohibits an assignment, you’re
free to transfer it to your corporation without getting
the consent of the other party.
But bear this in mind: Unless you get that consent
and a release of personal liability, or unless your
contract already specifically permits you to assign it
to a new corporation and be free from personal li-
ability, you’re still going to be legally responsible
for performance of the contract. This means that the
landlord can turn to you if the corporation doesn’t
pay the rent, and the medical clinic can hold you
personally responsible if you don’t deliver the soft-
ware you promised.
Important tax note. If your corporation
will derive income from passive sources, such
as rents, royalties, or dividends, or from the perfor-
mance of personal services, get professional tax ad-
vice before you transfer contracts to the corporation.
A transfer could lead to a personal holding company
penalty—which could be quite substantial.
To assign a contract, prepare a short document
called “Assignment of Lease” or “Assignment of
Computer Consultation Contract.” A sample is shown
below. Have the corporation agree to accept the assign-
ment and to carry out the terms of the contract. From
a business and legal standpoint, it makes sense to
continue your business through a single entity—the
corporation—rather than to do business simultaneously
as a sole proprietor and as an employee of your
corporation. Putting your eggs in one basket reduces
the chances of blurring the distinction between the
corporation and your personal business interests.
SAMPLE ASSIGNMENT OF CONTRACT
ASSIGNMENT OF RENOVATION CONTRACT
In consideration of the sum of $_________, receipt of which is acknowledged, Cecil Hardwick (d/b/a Hardwick Construction)
assigns to Hardwick Building Company (a Nevada Corporation) all of his rights, duties, and obligations under his contract with
Plaza Building Associates dated ________________, 20____, concerning the renovation of the Plaza Building.
Hardwick Building Company accepts this assignment and accepts all of Cecil Hardwick’s duties under the assigned contract.
Dated:______________, 20___
ASSIGNOR: ASSIGNEE:
Hardwick Building Company,
A Nevada Corporation
________________________________________ By: ________________________________________________
Cecil Hardwick d/b/a Cecil Hardwick
Hardwick Construction President
3/22 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
The Corporate Minutes Book
, by Anthony
Mancuso (Nolo), shows how to hold and
document necessary corporate meetings, and in-
cludes all forms on CD-ROM.
CHAPTER
4
Creating a Limited Liability Company
A. Number of Members Required ........................................................................ 4/2
B. Management of an LLC ................................................................................. 4/3
C. Financing an LLC .......................................................................................... 4/3
1. Capital Contributions (Equity) ..................................................................... 4/3
2. Loans (Debt)............................................................................................ 4/4
D. Compensating Members ................................................................................ 4/5
E. Choosing a Name........................................................................................ 4/6
F. Paperwork for Setting Up an LLC ..................................................................... 4/7
1. Articles of Organization ............................................................................. 4/8
2. Operating Agreement................................................................................ 4/9
G. After You Form Your LLC............................................................................... 4/11
1. Set Up an LLC Bank Account ................................................................... 4/11
2. Complete Any Initial Financial Transactions ................................................ 4/12
3. Comply With the Bulk Sales Law .............................................................. 4/12
4. Inform the IRS If Your LLC Chooses Corporate Taxation ................................. 4/12
H. Safe Business Practices for Your LLC ............................................................... 4/13
1. Put Adequate Capital Into Your LLC ........................................................... 4/13
2. Insure Against Obvious Risks .................................................................... 4/13
3. Separate Your Personal Finances From Your LLCs Finances ........................... 4/14
4. Use the Official LLC Name ...................................................................... 4/14
5. Sign Documents as An LLC Member or Manager ........................................ 4/14
6. File Annual State LLC Reports ................................................................... 4/15
7. Assign Existing Business Contracts to Your LLC ............................................ 4/15
8. Record Keeping .................................................................................... 4/16
4/2 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
C
hapter 1 introduced the basic business enti-
ties—the sole proprietorship, the partnership,
the limited liability company (LLC), and the
corporation. This chapter tells you more about set-
ting up an LLC.
As explained in Chapter 1, an LLC is often the
best choice if you want to limit your personal liabil-
ity as the owner of a small business. (Having limited
liability means that being a member of an LLC
doesn’t normally expose you to legal liability for
business debts and court judgments against the
business.)
While forming a corporation will also give you
and your co-owners (if you have any) limited liabil-
ity, the structure of a corporation is somewhat more
complicated than an LLC’s. In even the smallest cor-
poration, for example, you have a three-level orga-
nizational structure consisting of shareholders, a
board of directors, and corporate officers.
It’s true that the same people can fill all of these
roles—in fact, in a one-person corporation, a single
individual can do it all. But keeping track of what
corporate hat you’re wearing can be challenging
when you have more pressing business matters to
think about. And with an LLC, you may be able to
avoid some of the legal and tax paperwork associ-
ated with a corporation. For example, an LLC
needn’t worry about getting signatures on stock
subscriptions or issuing stock certificates or drawing
up board of directors’ resolutions—although an LLC
whose members prefer a higher degree of formality
are certainly free to issue membership certificates
and to document all major company decisions. (See
Section H8.)
And when it comes to taxes, a one-member LLC
that prefers pass-through taxation (as in a sole pro-
prietorship) rather than corporate-style taxation can
remain what the IRS calls a “disregarded entity”—
which means the LLC itself needn’t file any tax
documents at all.
In addition to requiring less paperwork, an LLC
can be far more streamlined and flexible than a cor-
poration. LLC owners can run their business with
much less formality. For instance, the owners of an
LLC (known as members) jointly manage the LLC
(although they can instead designate one or more
managers to manage it if they want to impose a
separate level of management). And in most states,
LLCs don’t have to hold annual meetings of the
members (although they can hold them if they
choose). Finally, as discussed in Chapter 1, Section
D, LLCs have the flexibility to choose to be taxed as
corporations or as partnerships.
The paperwork requirements and legal rules
governing LLCs are based on state laws. While these
laws vary somewhat from state to state, LLCs do en-
joy a surprising amount of consistency around the
country. This chapter is based on the LLC state laws
that are typical in most states. As you go through
this chapter, you should keep in mind that the rules
and practices for LLCs in your state may have some
quirks that aren’t covered here. It’s your job to
make sure that you’re following the law in your
state for creating an LLC.
For comprehensive information and guid-
ance on setting up an LLC: Consult Form
Your Own Limited Liability Company, by Anthony
Mancuso (Nolo). Among other things, the book con-
tains complete details on preparing your LLC articles
of organization and LLC operating agreement. The
book also contains a CD-ROM to help you prepare
these documents. Also, Nolo’s LLC Maker software, by
Anthony Mancuso, walks you through the process of
creating an LLC.
A. Number of Members
Required
Every state lets you form an LLC that has just one
member.
CREATING A LIMITED LIABILITY COMPANY 4/3
B. Management of an LLC
As with any company, at least one person has to be
in charge of managing the day-to-day business. In
most states, unless you appoint one or more mem-
bers or nonmembers to manage the LLC, you and
all the other members are automatically responsible
for managing the business. This is called “member-
management.” If you choose the other option and
do appoint one or more people to manage the LLC,
it’s called “manager-management.”
Chances are that your LLC will choose member-
management rather than manager-management.
That’s because you probably won’t want or need a
separate level of management.
EXAMPLE: Joyce, Phil, and Nora form Cyber
Networking LLC, a small consulting firm. All
three members are experienced computer ex-
perts who actively work in the business and
participate equally in running it. They meet
weekly to review new project proposals and to
decide whether or not to take on the new
work. They are all member managers. Nothing
could be simpler.
There are situations, however, in which a man-
ager-managed LLC is the better way to go. This is
most likely to be the case if you have passive inves-
tors who will feel more comfortable if the LLC ap-
points an active managing member (or perhaps sev-
eral managing members) whose duties are explicitly
defined.
EXAMPLE: Terry, Bill, and Chester form Wheel
Wellness LLC, a bicycle repair business, built
around Chester’s years of experience in repair-
ing exotic bikes. Terry and Bill contribute most
of the money but, knowing little about bicycle
repair, stay out of running of the business.
Chester contributes a small amount of money to
the LLC but his main contribution is his skill.
Since Terry and Bill are passive investors, they
agree that Chester will manage the company—
but they carefully spell out his duties in the op-
erating agreement so he knows what decisions
require input from the investors. All three are
happy with their manager-managed LLC in
which the lines of authority are clearly defined.
If your LLC chooses to designate managers,
you’ll need to specify this choice either in your ar-
ticles of organization or your operating agreement
(see below), depending on your state law.
C. Financing an LLC
Assets come into an LLC in two forms: equity and
debt. Let’s look at each.
1. Capital Contributions (Equity)
Ordinarily, you and the other LLC members will
make an initial financial contribution to the busi-
ness. In return, you’ll each get a percentage (capi-
tal) interest in the LLC. Among other things, this
capital interest determines the portion of the LLC
assets each of you is entitled to receive if the busi-
ness is dissolved or sold. Also, this percentage is
frequently used to determine how profits and losses
will be allocated while the business is in operation.
Under most state statutes, your capital contribu-
tions can consist of cash, property, or services—or
the promise to provide any of these in the future.
You may need to comply with securities
laws. If an LLC membership is considered a
“security,” you’ll need to register it at the federal or
state level unless it’s exempt from registration. Unfor-
tunately, the rules for when LLC memberships are
securities and when they’re not haven’t been well
defined yet. Generally, if a member relies on his or
her own efforts to make a profit—that is, the member
actively engages in managing or working for the
business—the interest probably won’t be considered
a security. It follows that most LLCs don’t have to reg-
4/4 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
ister before selling membership interests. If, however,
a member relies on someone else’s effort—that is, a
member is a passive investor—that member’s interest
is probably a security, and must be registered.
Because the law on whether LLC interests are se-
curities is in flux, you may want to see an experi-
enced business lawyer before you sell membership
interests in your LLC to people who won’t be active in
the day-to-day business. You may want to make sure
that the membership interests are not considered se-
curities or, if they are, that they’re exempt from gov-
ernment registration.
Normally, a capital investment in an LLC is tax-
free. You and the other members don’t pay tax on
the membership interests you receive, and the LLC
doesn’t pay tax on the cash or property it accepts in
exchange. The tax effects of paying capital into an
LLC are deferred until a later time; as an LLC mem-
ber, you’ll be taxed on any profit you make when
you sell your interest or you dissolve the business.
EXAMPLE: Wendy makes a capital contribution
of $10,000 to her new pet supply business,
Puppy Love LLC. As the sole member, she re-
ceives a 100% capital interest in the business.
She pays no tax at this time. Five years later
when Wendy sells the business and receives
$50,000 after all expenses are paid, she pays tax
on the $40,000 profit.
Attracting Financing for Your LLC
In the past, corporations sometimes had an
edge over other business forms in attracting
investment capital because the corporate stock
structure easily accommodates the issuance of
shares to investors. These days, however, a
growing number of venture capitalists are in-
vesting in LLCs because LLCs can be taxed as
corporations or partnerships and they offer
flexibility in how they’re managed.
For example, you can give majority voting
power to a venture capital group in return for
investing in your LLC. You simply amend your
LLC operating agreement and issue voting
membership interests to the group. What’s
more, if your LLC elects to be taxed like a part-
nership, the profits allocated to the investor-
members won’t be taxed twice (as corporate
dividends are), but will pass through the LLC
to the investors. They’ll then report and pay
taxes on the profits on their individual income
tax returns.
2. Loans (Debt)
To supplement capital contributions, LLCs often
borrow funds from time to time from their members
or a member’s family or friends. These loans help to
increase the LLC’s cash reserves or cover opera-
tional expenses. The money your LLC borrows isn’t
treated as business income—after all, it has to be
paid back. As a result, neither the LLC nor the mem-
bers pay tax on it.
These insider loans can benefit both the LLC and
the lender. A loan payable with interest can result
in an immediate investment return to the lender if
repayments are made in monthly installments.
CREATING A LIMITED LIABILITY COMPANY 4/5
EXAMPLE: Phil’s mother lends $10,000 to Phil’s
one-person LLC. The interest rate is set at 8%—
less than Phil would pay to a bank but more
than Phil’s mother would earn from a govern-
ment bond. The loan is repayable in monthly
installments of principal and interest over a
five-year period. Phil’s mother receives a return
on her money whether or not the LLC turns a
profit in any given month or year.
To avoid IRS problems, your LLC should pay a
lending member or other insider a commercially rea-
sonable rate of interest—a rate that’s close to what a
bank would charge. When the LLC makes payments
on the loan to the lending member, that member re-
ports the interest payments received from the LLC on
his or her individual income tax return, and pays
taxes on them at the individual income tax rate.
Of course, the repayment of principal by the LLC
to the lending member is simply a return of loan
proceeds, and isn’t taxable income. The LLC de-
ducts the interest payments that it makes to the
lending member as a business expense. These de-
ductions reduce the net profit of the LLC, which in
turn reduces the profits allocated and taxed to
members at the end of its tax year.
D. Compensating Members
We’ve looked at how money gets put into an LLC.
Now let’s get to the fun part and look at how you
take money out. We’ll assume that your LLC has
chosen the usual course and opted for partnership-
style rather than corporate-style taxation (discussed
in Chapter 1, and in Section G4, below).
LLC management can choose to pay active mem-
bers a regular salary or a share of LLC profits. (If a
member is inactive, the LLC can pay that member
only a share of the profits—see directly below). If
the LLC does choose to pay an active member a sal-
ary, the salary must be reasonable in light of the
services performed by the member—the IRS has
rules on what an LLC can pay to its members as
salaries and what must be paid out as profits (see
IRS Publication 535, Chapter 2).
A salary paid in return for the performance of
services (one that is not tied to net income of the
LLC) is classified as a “guaranteed payment.” A
guaranteed payment is taxed as ordinary income to
the member, and the LLC will deduct it as a busi-
ness expense before the net LLC income available
for distribution to all members is computed.
EXAMPLE: Will and Peter each have 50% owner-
ship interests in their home repair business, Fixer
Upper LLC. Will works half time in the business
and receives guaranteed payments (a salary) of
$30,000 annually for his services. Peter works full
time and receives guaranteed payments of
$60,000 annually. During the year, the LLC earns
$100,000 and has no expenses other than Will
and Peter’s salaries. After paying the salaries to
the two members, the LLC is left with a $10,000
profit. That profit is allocated 50/50 between Will
and Peter at the end of the year.
Now suppose you don’t receive a “salary” for
your services in the form of guaranteed payments
during the year (or that you’re an inactive member).
In that case, your earnings are tied entirely to the
net income of the LLC. An LLC’s profits and losses
are allocated to its members at the end of the LLC’s
tax year, according to the allocations in the LLC op-
erating agreement.
Typically, the share of profits and losses allo-
cated to each member is based on each member’s
percentage, or capital, interest in the LLC. So, going
back to the above example, if Will and Peter didn’t
receive guaranteed payments for their services, the
LLC’s $100,000 profit would be allocated equally
between them at the end of the tax year. The capi-
tal accounts of both Will and Peter would be cred-
ited with $50,000.
Sometimes members decide, and state in their op-
erating agreement, that one or more members may
receive what’s called a “draw”—a periodic payment
against future LLC profits. In this case, members do
not have to wait until the end of the LLC’s tax year to
take profits from the LLC. Each member takes a draw
each month or quarter; that draw, or distribution of
4/6 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
future profit, is subtracted from the member’s capital
account. When profits are allocated to each member
at the end of the LLC tax year, the member’s capital
account balance goes back up.
In tax lingo, profits that are allocated to an LLC
member are known as the member’s “distributive
share.” An LLC member must pay income tax on his
or her distributive share whether it’s actually distrib-
uted to the member or retained in the LLC coffers.
Self-Employment Taxes for
LLC Members
As mentioned in Chapter 1, the IRS collects a
15.3% “self-employment” tax on the first
$90,000 earned by a self-employed person and
a 2.9% tax on earnings above that amount for
Medicare alone. While owners of S corpora-
tions do not have to pay the self-employment
tax on the profits passed through the corpora-
tion to them, according to proposed IRS regu-
lations (which Congress has placed on hold),
as an LLC member you would have to pay self-
employment tax not only on money you re-
ceive as compensation for services, but also on
all profits passed through the LLC to you, in
the following situations:
You participate in the business for more
than 500 hours during the LLC’s tax year.
You work in an LLC that provides profes-
sional services in the fields of health, law,
engineering, architecture, accounting, actu-
arial science, or consulting (no matter how
many hours you work).
You’re empowered to sign contracts on
behalf of your LLC.
The IRS says it won’t challenge you if you
use the proposed regulations to determine
your liability for self-employment tax. If you
fall into one of the three categories listed
above, 100% of your income from the LLC will
be subject to self-employment tax. Otherwise,
you can apply the S corporation rules de-
scribed at the end of Chapter 1.
E. Choosing a Name
Your LLC name will have to comply with state legal
requirements. This usually means including an LLC
designator such as “Limited Liability Company” or
“Limited Company” in the LLC name. Many states
allow abbreviations such as LLC or LC.
EXAMPLE: You choose Andover Services as the
name of your business. Depending on the state
in which you’re located, one or more of the fol-
lowing may be appropriate ways to indicate
that your business is an LLC:
Andover Services Limited Liability Company
Andover Services L.L.C.
Andover Services LLC
Andover Services Limited Liability Co.
Andover Services Ltd. Liability Co.
Andover Services Limited Company
Andover Services Ltd. Co.
Andover Services L.C.
Andover Services LC.
You’ll need to put the name of your LLC in the
articles of organization that you’ll file with your
state’s LLC filing office. If you pick a name that’s al-
ready on file for an LLC in your state, your articles of
organization will be rejected. The same thing will oc-
cur if your proposed name is not identical to but
simply too close to one that’s already on file. Some
states will also cross-check your proposed name
against names on file for existing corporations or lim-
ited partnerships.
By planning ahead, you’ll avoid the annoying set-
back of having to choose another name. In many
states, if you call the LLC filing office, the clerk will
make an instant computer check and let you know if
there’s a name conflict. A few states will ask you to
request the information in writing.
Name availability check is only
preliminary. Until you’ve reserved an LLC
name (as explained below) or filed your LLC articles
of organization and had your filing accepted, your
CREATING A LIMITED LIABILITY COMPANY 4/7
proposed name isn’t yours to use. The information
on name availability that you receive by phone or in
response to a written request for a name check is just
preliminary. Until you definitely have the name re-
served or filed and accepted, don’t spend money on
business stationery, signs, or advertising using the
proposed name.
Be aware that even if your name is accepted by
the LLC filing office, you may not have the full legal
right to use that name to identify your products or
services. The LLC filing office looks only at whether
the name meets the requirements of the state LLC
law and whether it’s already in use by another LLC
in the state. Some states will cross-check your pro-
posed name against names on file for existing cor-
porations or limited partnerships, but many will not
even do that.
And, of course, legal conflicts may arise from
other sources. Most important—especially if you’ll
use your name as a trademark or service mark to
identify your goods or services—you’ll need to
make sure your proposed name isn’t the same as or
very similar to another well-known business name
or trademark—Starbucks, Intel, or Borders, for ex-
ample (see Chapter 6). If it is, the owner of the fa-
mous name will insist that you drop it; if you don’t,
the name owner will very likely go to court and
win. To avoid this complication, you may want to
do a national name search—and perhaps register
your name as a trademark or service mark if the
name is clear for your use.
To learn more about trademark law in
general and name searches in particular
(including how you can do a simple name
search yourself):
Read Trademark: Legal Care for
Your Business & Product Name, by Stephen Elias
(Nolo).
Suppose your LLC name is available but you’re
not quite ready to file your articles of organization.
In most states, you can reserve the name for 30 to
120 days by paying a small filing fee. Many states
have a preprinted form you can use for this pur-
pose. After reserving a name, if you file your ar-
ticles of organization within the reservation period,
the name will be accepted by the LLC filing office.
You’re not locked into your business
name forever. Your business can use a
name that’s different from the name used in your
articles of organization. You can even use several
alternative names. However, to use one or more al-
ternatives with legal safety (in other words, to pre-
serve the benefits of limited liability), you’ll have to
register each name as an “assumed” or “fictitious
business name” at the state or county level or both.
For more on this subject, see Chapter 6, Section B.
It’s also possible to change the name of your LLC by
filing amended articles of organization.
F. Paperwork for Setting Up
an LLC
Setting up an LLC is simple. Typically, you must
complete just two basic legal documents—the ar-
ticles of organization (also called “articles of forma-
tion” or a “certificate of formation” in some states)
and the operating agreement (called “regulations” in
a few states).
Additional form for corporate-style
taxation. In the somewhat unusual event
that you want to have your LLC taxed as a corpora-
tion, you’ll also need to file a form with the IRS; it’s
IRS Form 8832, Entity Classification Election. See
Section G4, below.
4/8 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
1. Articles of Organization
In most states, preparing your articles of organiza-
tion is surprisingly simple—especially if your LLC is
a typical small business consisting of a handful of
owners. Most states provide a printed form for the
articles of organization; just fill in the blanks, sign
the form, and file it with the LLC filing office. The
task is made even easier in the states that include
instructions for filling in the blanks.
Other states don’t provide the actual articles of
organization form but do furnish something almost
as convenient: sample articles with instructions. You
can prepare your own articles of incorporation by
following the format and contents of the sample.
If your state is one of the few that provides nei-
ther fill-in-the-blank forms nor sample forms with
instructions, you’ll need to check your state’s LLC
statute to learn what to put into the articles of orga-
nization.
For step-by-step instructions on preparing
articles of organization and other organi-
zational documents for your LLC:
Consult Form
Your Own Limited Liability Company, by Anthony
Mancuso (Nolo).
Typically, your articles of organization will not
need to include anything more than the following
information:
The name of your LLC. (See Section E, above,
for more on picking a name.)
The name and address of your LLC’s initial
registered agent and office. You’ll probably
name one of your members as your registered
agent—the person who receives official corre-
spondence relating to the LLC and who gets
served with lawsuit papers if someone sues
the business. You’ll generally use the LLC’s
business location or the registered agent’s
home as the registered office address.
Statement of purpose. In most states, you
don’t need to describe your business activ-
ity—a general statement of purpose will suf-
fice. Example: “Purpose: To engage in any
lawful business for which limited liability
companies may be organized in this state.”
Type of management. You usually need to say
whether your LLC will be member-managed
or manager-managed. The difference between
the two is explained in Section B, above. In
most states, if you don’t specify the type of
management, your LLC will be managed by
all the members (that is, member-managed).
Typically, you’ll also need to give the names
and addresses of your initial members and,
for manager-managed LLCs, your initial man-
agers. (Note: In some states, the type of man-
agement is specified in the operating agree-
ment rather than the articles.)
Principal place of business. You’ll give the
address of your main business location. For
most small businesses, it’s also the only loca-
tion.
Duration of the LLC. In many states, your ar-
ticles must specify how long your LLC will be
active. You may be able to choose between a
“perpetual” (unlimited) duration or a specific
number of years. Some states put an upper
limit on the number of years you can
choose—30 or 50 years, for example. These
statutory limits should cause no problem be-
cause when the time is up, you or your LLC
successors can extend the life of the business
for another long term of years.
Signatures of people forming the LLC. Usually,
state law allows one person to sign the ar-
ticles as the organizer of the LLC. But if your
LLC is member-managed, you’ll probably
choose to have all the initial members sign
the articles of organization to give everyone a
sense of participation.
CREATING A LIMITED LIABILITY COMPANY 4/9
After preparing your articles, you file them with
your state’s LLC filing office—usually the secretary
of state, located in your state’s capital city. In a few
states, before or after you file your articles of orga-
nization, you may need to put a legal notice in a
local newspaper stating your intention to form an
LLC.
There may be special requirements for
licensed professionals. In many states, if
you’re a licensed professional, you’ll need to comply
with additional rules for starting an LLC. For ex-
ample, you may have to file special articles of orga-
nization for a professional LLC, and you may have
to end your LLC name with special words or initials
such as “Professional Limited Liability Company” or
“PLLC.” In a few states, such as California, many
types of professionals, such as accountants, doctors,
and physical therapists, to name a few, are not al-
lowed to form LLCs. For more on professional LLCs,
see Chapter 1, Section F2b.
2. Operating Agreement
Once you’ve filed your LLC articles of organization
with your state’s LLC filing office and the document
has been accepted, you’re officially in business. But
if you have more than one member, don’t overlook
another important piece of LLC paperwork: the op-
erating agreement.
Although you can usually omit this document for
a one-person LLC (except see “Ask your tax advisor
about allocating goodwill payments in your operat-
ing agreement,” below), it’s very important to have
one if your LLC has two or more members.
Ask your tax advisor about allocating
goodwill payments in your operating
agreement. If you plan to sell your LLC membership
interest in the future, you may wish to specifically
provide in your LLC operating agreement that part of
the buyout price includes a reasonable payment for
the selling member’s share of the business’s goodwill.
(Goodwill is an intangible factor—often based on
brand recognition or business reputation—that
makes a business worth more than just the value of
its physical assets.) You’re probably aware that it’s
better to have income taxed as a capital gain rather
than as ordinary income. By including such a good-
will allocation in an operating agreement, you en-
sure that the portion of the buyout price attributed to
goodwill will be treated as a capital asset. This will
save the selling member from having to pay tax on it
at the higher, ordinary income tax rates. For this
reason, if you set up a one-person LLC, you may
want to create an operating agreement just for the
purpose of making a goodwill allocation. See your
tax advisor, as this is a complicated area of business
tax law.
The operating agreement serves a function simi-
lar to partnership agreements (Chapter 2) and cor-
porate bylaws (Chapter 3). It sets the rules for how
the owners will run th(9business and it defines their
rights and responsibilities, such as the members’
voting power and right to profits.
In a typical operating agreement for a member-
managed LLC, provisions covering the following
subjects are usually included:
Capital provisions. One of the most important
parts of an operating agreement sets forth
how much money or property each member
will contribute to the LLC and what additional
contributions may later be required.
How a member’s percentage interest is deter-
mined. The operating agreement should state
how members’ percentage (capital) interests
are computed. Typically a member’s percent-
age interest will be based on how a member’s
capital account compares to the total of all
4/10 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
members’ capital accounts. So if Ed has
$25,000 in his capital account and the total of
all capital accounts is $100,000, then Ed’s per-
centage interest is 25%.
Capital Accounts Explained
In bookkeeping speak, a member’s capital ac-
count represents the current value of that
member’s percentage of ownership interest.
When an LLC member contributes cash or
property to the LLC, the member’s capital ac-
count is credited with the cash amount or fair
market value of the property contributed.
Later, when profits are allocated at the end of
the LLC tax year, the member’s capital account
balance goes up (the business owes the mem-
ber this money); as distributions of profits are
made, the capital account balance goes down
(the business no longer owes this money to
the member).
The capital account balance is also the
amount of LLC assets that a member expects to
be paid if the company is liquidated and split
up among the members (assuming there’s suf-
ficient cash or other assets left after all credi-
tors have been paid).
Type of management. Your agreement may
need to specify whether your LLC will be
member-managed or manager-managed. Most
small LLCs will opt for member-management,
and in the majority of states, if you don’t
specify your choice, the law says that your
LLC will be managed by all the members (that
is, member-managed). Typically, you’ll also
need to give the names and addresses of your
initial members and, for manager-managed
LLCs, your initial managers. (Note: In most
states, you can elect the type of management
either in your articles or your operating
agreement.)
Membership voting. Your agreement should
also specify how issues will be voted on and
decided. In the case of a member-managed
LLC, you’ll probably want a simple majority
(51%) of membership interests to decide most
issues, but you can also provide for a larger
majority (two-thirds, for example) to decide
some matters. You can also provide for per
capita voting, where one member is given
one vote.
Profits and losses. Explain how profits and
losses will be allocated to members. Typi-
cally, it will be on the basis of each member’s
percentage (capital) interest in the LLC.
Distribution of money. You may decide to put
language in your operating agreement spelling
out who will decide if and when LLC profits
will be distributed to members. For example,
you might provide that all members must
agree on a distribution or, perhaps, tfy4 a ma-
jority of members can make that decision.
Tax election. As noted above, an LLC is taxed
as a partnership unless it elects to be taxed as
a corporation. It’s a good idea to state in your
operating agreement how the LLC will be
taxed initially.
Transfer of a membership interest. Your oper-
ating agreement should say how a member
can withdraw from the business and whether
a member can transfer his or her interest in
the LLC to someone else.
Addition of new members. Explain whether
new members will be allowed into the LLC
and how—that is, by a simple majority, a
larger majority, or a unanimous vote.
Buy-sell provisions. Chapter 5 covers the im-
portant subject of what happens if a member
dies, moves away, gets sick, or simply wants
to get out of the business. Can the LLC force
the departing member to sell her interest to
them? How will the interest of a departing
member be valued? While you can cover
CREATING A LIMITED LIABILITY COMPANY 4/11
these issues in a separate buy-sell agreement,
it makes better sense for LLC members to deal
with them in the operating agreement.
Other businesses. Your operating agreement
can provide, for example, that members are
free to own interests in or work for other
businesses that don’t compete with the busi-
ness of the LLC.
As mentioned above, most small businesses that
operate as LLCs will prefer to have the business
member-managed rather than manager-managed. If
your business chooses the less popular manager-
managed option, you’ll need a special section in
your operating agreement dealing with how manag-
ers are selected and replaced, and what authority
they have.
For excellent guidance on preparing your
LLC operating agreement: Consult Form
Your Own Limited Liability Company, by Anthony
Mancuso (Nolo). It contains complete details for pre-
paring an LLC operating agreement whether your LLC
is member-managed or manager-managed. The CD
that accompanies the book makes the task even easier.
Have a lawyer review your operating
agreement. If you prepare your own operat-
ing agreement, it’s a good idea to have an experi-
enced small-business lawyer look it over before you
and the other members sign it. That will help assure
that the provisions are internally consistent and that
you haven’t made any technical errors that can
cause legal, tax, or financial problems later. A
lawyer’s fees for reviewing the operating agreement
should be a fraction of what they would be if the
lawyer drafted the document from scratch.
G. After You Form Your LLC
Once your LLC articles of organization have been
accepted by your state’s LLC filing office and you’ve
signed an LLC operating agreement dealing with
such important issues as managing the business, al-
locating profits and losses, and transferring mem-
bership interests, you’re ready to start doing busi-
ness. However, there are a few additional actions
that are either legally required or worth considering
to put your new company on a sound footing.
1. Set Up an LLC Bank Account
Remember, your LLC is a legal entity separate from
its members and managers. For this reason, your
LLC needs its own bank account so that its finances
can clearly be kept separate.
If you’re creating an LLC out of an existing busi-
ness that already has a bank account—for example,
your sole proprietorship or partnership business is
now going to be run as an LLC—start fresh by
opening a new bank account for the LLC. The bank
may ask for a copy of your articles of organization
and your Employer Identification Number (EIN),
which is issued by the IRS. (EINs are discussed in
Chapter 8, Section A.)
If you decide to simply continue the old ac-
count, you’ll need to check with your bank to learn
their procedures for moving a bank account from a
prior business to a new legal entity. Again, the bank
will probably want to see your articles of organiza-
tion and your EIN. You need to keep detailed
records showing exactly how much money was in
the account when it was changed over to the LLC.
Also, keep track of checks that were written by
your prior business but haven’t cleared yet. These
checks should be treated as expenses of the prior
business and deducted from the amount considered
transferred to the LLC. If you don’t prepare and re-
tain these records, you can wind up with one big
headache a few years from now when you try to
reconstruct exactly what you transferred to the LLC.
4/12 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
2. Complete Any Initial Financial
Transactions
Tie up any other loose ends relating to the financ-
ing of the LLC. For example, make sure that the
members deposit their initial contributions of cash
into the LLC bank account. If a member transfers
property—computer equipment, for example—to
the LLC in exchange for a membership interest, the
member should sign a bill of sale confirming the
transfer of property to the LLC.
And if your LLC is borrowing startup money
from friends, relatives, or its members, be sure to
issue promissory notes from the LLC stating the in-
terest rate and other terms of repayment.
Finally, if you or another member will be leasing
space to the LLC, prepare a lease as if the landlord
were a complete outsider.
3. Comply With the Bulk Sales Law
If members are transferring assets from a preexisting
business to the new LLC in exchange for member-
ship interests in the company, you may need to
comply with your state’s bulk sales law. These laws,
currently on the books in six states (California,
Georgia, Indiana, Maryland, Virginia, and
wisconsin), apply mainly to retail, wholesale, and
manufacturing businesses. They are intended to
prevent business owners from secretly transferring
their business assets to another company to avoid
paying creditors. Typically, under these laws, you
have to notify creditors that the assets of the busi-
ness are being transferred.
While the details of bulk sales laws differ some-
what from state to state, these laws usually have an
exemption or shortcut that applies when you trans-
fer assets from an existing business to a new LLC
that will continue the business. Typically, to qualify,
your LLC needs to agree in writing to take over the
business debts of the existing company.
4. Inform the IRS If Your LLC
Chooses Corporate Taxation
An LLC is normally taxed as a partnership (ex-
plained in Chapter 1, Section D). This means that
for federal income tax purposes, the LLC itself does
not pay a tax on its income. Profits or losses pass
through to the individual members, who include
their share of LLC profits or deduct their share of
LLC losses on their personal tax returns. This is the
route that the members of most LLCs prefer. If that’s
what you want to do, you don’t have to let the IRS
know. You’ll automatically be treated as a partner-
ship for federal income tax purposes.
The other tax option is to have your LLC treated
as a corporation for tax purposes. Your tax advisor
may recommend this if you expect your LLC profits
will be substantial and the members are prepared to
leave some of the profits in the business. The funds
can be used in a later year, for example, to pay for
a new building or the purchase of additional equip-
ment. With corporate tax treatment, the income re-
tained in the LLC is taxed at lower corporate tax
rates (15% and 25% for taxable net income up to
$75,000), instead of the top individual tax rates of
35% and 38.6% that might apply to income allo-
cated to members of an LLC that has elected part-
nership-style taxation.
If your members want to have your LLC taxed as
a corporation, the LLC will need to file IRS Form
8832, Entity Classification Election, within 75 days
of the formation of the company. Otherwise, you’ll
have to wait until a later tax year to make the
change.
For more on complying with federal and state
tax filing rules, see Chapter 8.
CREATING A LIMITED LIABILITY COMPANY 4/13
H. Safe Business Practices for
Your LLC
In a small LLC consisting of just one member or a
few members, it’s sometimes hard to keep in the
front of your mind the fact that the LLC is a separate
legal entity from you and the other members. You
and your business are not the same. In the eyes of
the law, you are an agent of the LLC. For example,
when you sign contracts and other documents,
you’re signing them (or should be signing them) on
behalf of the LLC and not as an individual.
Remembering this distinction between you and
your LLC can seem especially burdensome if you’ve
done business in the past as a sole proprietorship
or partnership and have just changed over to an
LLC. On the day-to-day level, it’s really business as
usual and, in many respects, nothing at all has
changed. Yet, if you want to get the maximum pro-
tection from personal liability for debts of the busi-
ness, you need to carefully observe the legal dis-
tinction between yourself and your LLC. Fortu-
nately, as you’ll see shortly, that task isn’t as tough
as you may think.
The reason it’s so important to always treat the
LLC as a separate entity is that if you don’t, a judge
may decide that you’re personally liable for a busi-
ness debt or that you have to pay a lawsuit judg-
ment out of your personal assets. It’s becoming
clear that in cases involving LLCs, judges will follow
the same rules that they apply to corporations and
will hold LLC owners personally liable for business
debts if the owners haven’t respected entity formali-
ties. (See Chapter 3, Section H, for some examples
of what courts have done when corporations have
been sloppy.)
So if you ignore the fact that your business is or-
ganized as an LLC, and you operate it more like a
sole proprietorship or a partnership, you will need-
lessly face the risk of personal liability. It follows
that many of the precautions that I recommend for
protecting corporate shareholders from personal li-
ability should help to shield LLC members.
1. Put Adequate Capital Into Your
LLC
Put enough money and other assets into your busi-
ness to meet business expenses that are likely to
come up. If you don’t, and there’s a lawsuit, a judge
may rule that the LLC is a sham—that it really isn’t a
separate entity from its owners—in which case you
and the other members may be personally liable.
Each business has different financial needs. You
can often legally fund a small home-based business
such as a computer consulting operation on a shoe-
string. But opening a pizza restaurant would require
considerably more money, since you’d need to
lease space, outfit a kitchen and dining area, and
hire employees. Your accountant should be able to
recommend a reasonable level of funding for your
LLC.
2. Insure Against Obvious Risks
Think carefully about whether there’s a substantial
risk of customers or others getting hurt because of
your business. If so, it’s a good idea to buy a rea-
sonable amount of liability insurance coverage. (See
Chapter 12 for more on insurance.)
In a few cases, judges have felt that the owners
of a small corporation were acting recklessly be-
cause the corporation didn’t buy liability insurance
that was reasonably available. This recklessness
played a part in the judges’ decisions to hold the
owners personally liable to people injured by the
corporations’ employees or products. It’s likely the
same principle will be applied to LLCs. So if liability
insurance is available at a reasonable price, see to it
that your LLC gets the proper coverage.
4/14 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
3. Separate Your Personal
Finances From Your LLC’s
Finances
The LLC needs its own bank account (see Section
G1). Don’t use that account to pay your personal
expenses. If you receive checks from the LLC for
salaries or draws (see Section D, above), deposit
the checks in your personal account and then pay
your personal bills from that account.
If you use personal funds to pay business ex-
penses—for example, you pick up a business book
on the way home from work—you can have the
LLC reimburse you. Be sure the LLC keeps a receipt
for your purchase of the book to justify deducting
the cost as a proper business expense.
To further separate you and other members from
the LLC, document all transactions as if you were
strangers. If the LLC leases a building from you,
sign a lease. If the LLC borrows money from you,
get a promissory note. If you sell equipment to the
LLC, sign a bill of sale to formally transfer legal
ownership to the LLC.
4. Use the Official LLC Name
Suppose the name of your LLC is Kitchen & Bath
Designers LLC. Use that full business name in all
your business dealing—on your stationery, business
cards, and phone book listings, on your signs, in
catalogues, and on the Internet. Don’t use a differ-
ent name or abbreviation (such as Kitchen & Bath
Designers, without the letters LLC) unless you file
an assumed name certificate or fictitious name cer-
tificate as permitted by state law. For more on LLC
names, see Section E, above, and Chapter 6.
5. Sign Documents as an LLC
Member or Manager
In correspondence and on checks, sign your name
as Paula Smith, Member, or Paula Smith, Manager,
along with the full name of your LLC, rather than
just Paula Smith. This makes it clear to those who
deal with you that you’re acting as an agent or em-
ployee of the LLC and not as an individual. Follow
this practice on any other documents you sign, such
as contracts, order forms, and promissory notes.
SAMPLE SIGNATURE OF LLC MEMBER OR MANAGER
Whole Grain Bakery LLC
By: _______________________
Paula Smith, Member
OR
Whole Grain Bakery LLC
By: _______________________
Paula Smith, Manager
In some cases you may have to personally sign
an LLC document or promissory note as a guaran-
tor. For example, a bank typically won’t lend
money to a small LLC unless the members person-
ally guarantee repayment, and a super-cautious
landlord may want you to guarantee the lease. But
even if you have to accept personal liability for
some LLC obligations, it’s better to do this as a guar-
antor than as the main signer. The reason: The
guarantee serves as further evidence that you and
the LLC are separate legal entities.
CREATING A LIMITED LIABILITY COMPANY 4/15
6. File Annual State LLC Reports
In most states, you’re required to file a one-page
annual report on a form available from the LLC fil-
ing office. Usually, the form is automatically mailed
to you. You’ll have to pay a small filing fee in the
range of $10 to $50—although the fee is higher in
a few states. To avoid losing your legal status as
an LLC and your protection from personal liability,
it’s important that you complete the form and return
it along with the filing fee to the appropriate state
office.
7. Assign Existing Business
Contracts to Your LLC
If you’ve been doing business as a sole proprietor-
ship or partnership and are now switching over to
an LLC, you may have some ongoing contracts that
you’d like the LLC to take over. For example,
maybe your sole proprietorship signed a five-year
lease for business space and there are still two years
left to go under the lease. Or maybe the partnership
you established for your lawn maintenance business
has several contracts in force to service the lawns of
major businesses in a local research park.
It makes sense to transfer these contracts to your
LLC. You usually can do this without getting the
consent of the other party to the contract, unless
the contract specifically prohibits an assignment.
But be aware that if you do assign a contract to
your LLC, you’ll still be personally liable for com-
plying with it. There are basically only two situa-
tions in which this isn’t true. The first is when the
other party consents in writing to release you from
liability. The second is when the contract contains
language allowing you to assign it to a new LLC or
corporation and be free from personal liability.
Unless you fall into one of these two exceptions,
the landlord in the first example will be able to turn
to you for the rent if the LLC doesn’t pay it. Or in
the second example, the businesses that contracted
for your lawn maintenance services will be able to
hold you personally responsible if your LLC doesn’t
perform and the businesses have to pay a higher
price to get the work done by someone else.
Tax rules on passive investments are
tricky. If your LLC will receive income from
passive sources (rents, royalties, or dividends, for ex-
ample) or from the performance of personal services,
get professional advice before transferring contracts to
the LLC. A transfer could lead to a personal holding
company penalty—which could be quite substantial.
SAMPLE ASSIGNMENT OF CONTRACT
Assignment of Contract
In consideration of the sum of $_____, receipt of
which is acknowledged, WordSmith Associates (an
Indiana partnership) assigns to WordSmith Media
Consultants LLC (an Indiana limited liability com-
pany) all of its rights and duties under the contract
with Smoke Stack Industries, Inc., dated
______________, 20__, for advertising, marketing,
and public relations services.
WordSmith Media Consultants LLC accepts this
assignment and accepts all of WordSmith
Associates’ duties under the assigned contract.
Dated: _______________, 20__
ASSIGNOR: ASSIGNEE:
WordSmith Associates, WordSmith Media
Consultants LLC,
An Indiana Partnership An Indiana Limited
Liability Company
By:_________________ By: __________________
Cynthia Cardone Cynthia Cardone
Partner Member
4/16 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
8. Record Keeping
If someone goes to court and asks the judge to dis-
regard your LLC and hold you personally liable, you
may be able to bolster your position if you can pro-
duce a record book that shows you’ve consistently
treated the LLC as a separate legal entity.
This is clearly the case when someone seeks to
get behind a corporation and hold the owners
(shareholders) personally liable. (See Chapter 3,
Section H.) That’s because by law and tradition,
corporations are expected to observe a number of
formalities such as holding annual meetings and
documenting meetings of the board of directors.
The paperwork requirements for an LLC are mini-
mal compared with those for a corporation. Still,
you may want to hold periodic meetings and docu-
ment important LLC decisions—especially if you
have more than two or three members.
Depending on the degree of formality you
choose for running your LLC, I recommend that you
keep an LLC record book containing important pa-
perwork, such as:
the articles of organization
the operating agreement
a membership register listing the names and
addresses of your members
a membership transfer ledger showing the
dates of any transfers of membership interests
by a member
membership certificates and stubs (if your
LLC decides to issue certificates to members),
and
minutes of LLC meetings and written consent
forms (if your LLC decides to hold formal
meetings or to get written membership ap-
provals for certain LLC decisions—see discus-
sion directly below).
Even if your LLC has decided to proceed with a
minimum amount of formal paperwork, you should
consider documenting the members’ approval of the
most significant LLC actions, including:
authorizing LLC bank accounts and designat-
ing who’s eligible to sign checks and with-
draw funds
borrowing money, from a bank or from an
LLC member
amending the articles of organization or the
operating agreement
entering into major contracts
buying, selling, or leasing real estate
electing corporate-style taxation or a tax year
other than a calendar year
authorizing distributions of profits to mem-
bers
admitting new members
authorizing the LLC purchase of the interest
of a departing member.
By staying on top of this simple paperwork,
you’ll have a paper trail of important LLC decisions
that will help satisfy courts, the IRS, and others that
you’ve attended to all the legal and tax niceties and
that you’ve treated the LLC as a separate legal en-
tity.
Your Limited Liability Company:
An Operating Manual,
by Anthony
Mancuso (Nolo), explains ongoing record keeping
requirements and provides minutes, written consent
forms, and resolutions for a multitude of business
decisions.
CHAPTER
5
Preparing for Ownership Changes With
a Buy-Sell Agreement
A. Major Benefits of Adopting a Buy-Sell Agreement ............................................... 5/3
1. Controlling Who Can Own an Interest in Your Company ............................... 5/3
2. Providing a Guaranteed Buyer for Your Ownership Interest ............................. 5/5
3. Setting a Fair Price and Providing a Workable Method for a Buyout ................. 5/6
B. Where to Put Your Buy-Sell Provisions ............................................................... 5/7
1. Corporations .......................................................................................... 5/7
2. LLCs and Partnerships ............................................................................... 5/8
C. When to Create a Buy-Sell Agreement ............................................................. 5/8
5/2 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
I
f you’re in business with others, there’s a good
chance that there will be ownership changes as
the years go by. That’s true whether you orga-
nize your business as a partnership, a limited liabil-
ity company (LLC), or a corporation. Ownership
changes may be the last thing you want to think
about when the business is brand-new. However,
the fact is that many things can happen down the
road—or maybe only a few steps away—to affect
the ownership of your business. For example, you
or a co-owner may:
decide to move out of state to pursue a new
line of work
become physically or mentally disabled—or
even die
seek to buy out a co-owner’s interest in the
business, or
want to sell to an outsider.
What happens then? Will the transition proceed
smoothly and fairly? Or will there be discord and,
possibly, lawsuits? The answer may depend on how
well you’ve planned for the future. Without careful
planning, the business itself may be in jeopardy. In
an extreme case, all the time and money that you
and the other owners have put into the venture may
evaporate as the business falls apart.
Certainly, during the sunny, optimistic days
when you’re putting the business together, it’s hard
to focus on disruptive changes that you may face in
the future. And it’s equally difficult to do so when
the business is humming merrily along. But plan-
ning ahead can save all involved from a ton of grief.
Most businesses with two or more owners
should put together a buy-sell agreement. This prin-
ciple applies regardless of the legal format you’ve
chosen for your business. Partners in a partnership,
shareholders in a corporation, and members of an
LLC will all benefit from well-drafted buy-sell provi-
sions.
First, let’s get our terms straight. When I use the
term buy-sell agreement, I’m not talking about a
contract in which you promise to buy an outsider’s
business or an outsider promises to buy yours;
that’s a separate topic, covered in depth in Chapter
10. The buy-sell agreement we’re looking at here is
a binding contract among the owners of your busi-
ness that controls the buying and selling of owner-
ship interests in that business. When a co-owner is
thinking about selling or giving away his or her in-
terest, a good buy-sell agreement steps in to give
the continuing owners some control over the trans-
action. Often, the agreement will regulate who can
buy the departing owner’s interest and at what
price, or sometimes whether the co-owner can sell
at all.
Importantly, a buy-sell agreement helps assure
that you and your co-owners aren’t forced to work
with strangers or other people you won’t get along
with. It can also help assure that if a co-owner
leaves the business, that person will receive a rea-
sonable sum in exchange for his or her ownership
interest—or if a co-owner dies, that the heirs will be
paid fairly.
Typically a buy-sell agreement also gives the
business and its continuing owners a chance to buy
out an owner who’s stopped working for the busi-
ness or has died. This eliminates the possibility that
active owners will be forced to share profits with an
inactive owner or an unsuitable new owner. Some
buy-sell agreements also say that if an owner dies,
the surviving owners can force the deceased
owner’s estate representative or inheritors to sell
back the deceased owner’s interest to the company
or to its surviving owners. Similar provisions may
apply when an owner decides to retire after a cer-
tain period of time, or becomes disabled and can’t
actively participate in the business.
This chapter simply introduces you to the
important concept of buy-sell agreements.
For comprehensive coverage of the subject and pre-
cise guidance on how to develop your own agree-
ment, be sure to consult Buy-Sell Agreement Hand-
book: Plan Ahead for Changes in the Ownership of
Your Business, by Anthony Mancuso and Bethany
K. Laurence (Nolo). The book comes with a CD-ROM
and a worksheet to walk you through the process.
PREPARING FOR OWNERSHIP CHANGES WITH A BUY-SELL AGREEMENT 5/3
Check your agreement with an expert.
With the help of the comprehensive book and
disk recommended above, you should be able to
craft a respectable buy-sell agreement. However, as
authors Mancuso and Laurence wisely note, even
their book can’t provide the depth of advice—espe-
cially in the tax and estate-planning realm—that a
buy-sell or financial planner or tax expert can pro-
vide. And of course, their book can’t customize an
agreement for you that suits exactly your company’s
and each owner’s individual needs. So if you do
draft your own buy-sell agreement, be sure to take it
to a small business tax or legal advisor before put-
ting your finalized agreement into action.
A. Major Benefits of Adopting
a Buy-Sell Agreement
If you don’t have a buy-sell agreement, here are
some things that can happen:
You may be forced to work with and share
control of the company with an inexperi-
enced or untrustworthy stranger who buys
the interest of a departing owner.
You may be forced to work with the spouse
or other family member of a deceased or di-
vorced owner. While this might work out just
fine, there’s also a substantial possibility that
the family member will lack the necessary
business skills or the right personal qualities
for working with you and the other co-own-
ers.
If you leave the company or die, you or your
survivors may be stuck with a small business
interest that no outsider wants to buy—and
for which no insider will give you a decent
price.
You and your co-owners may argue with a
departing co-owner or the inheritors of that
co-owner over what price should be paid for
the interest that’s changing hands. This can
cause an angry deadlock that can wreak
havoc on your business operations.
Now let’s see how a buy-sell agreement can help
your business avoid these situations.
1. Controlling Who Can Own an
Interest in Your Company
An outsider who gains an ownership interest can
disrupt the smooth flow of your business—espe-
cially in the case of major management decisions
that require unanimous approval of the owners.
Consider this example:
EXAMPLE 1: Joe and Cindy form a small corpo-
ration. Each receives 50% of the corporate
stock. They don’t foresee problems down the
road so they don’t bother with a buy-sell agree-
ment. A few years later, Joe and Cindy have a
serious disagreement over how to expand the
business. To avoid further hassles, Joe sells his
shares to Albert, whom Cindy has never met
before. The two quickly reach an impasse on
management issues and the business comes to a
standstill.
A buy-sell agreement can prevent this from hap-
pening, by giving the owners the power to prevent
outsiders from buying in. Sometimes this is accom-
plished by giving the remaining owner or owners
the opportunity to meet any outsider’s offer for an
interest in the company. This type of provision is
called a “Right of First Refusal.” To better under-
stand its purpose, see what happens if Joe and
Cindy had a buy-sell agreement:
EXAMPLE 2: Joe and Cindy form a small corpo-
ration—and they wisely create a buy-sell agree-
ment to deal with what happens if one of them
wants to leave the business. A few years later
5/4 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
when they disagree on how to expand, Joe
decides to sell his shares. Albert offers to buy
the shares for $10 each. The Right-of-First-
Refusal provision in their buy-sell agreement
requires Joe to offer the shares to Cindy at the
same price. Rather than share control of the
business with a stranger, Cindy buys Joe’s
shares. The business continues to run smoothly
and prospers.
A buy-sell agreement can also give the surviving
owners the power to purchase the interest of an
owner who’s died if the surviving owners don’t
want the inheritors of the deceased owner to be-
come co-owners of the business.
Who Doesn’t Need
a Buy-Sell Agreement?
Although a buy-sell agreement can benefit
most small businesses, there are situations
where one isn’t essential.
You’re the 100% owner of the business. If
you have a one-person business, obviously
you won’t have much interest in an agreement
that controls who may own interests in the
company, since you can do that yourself. But
consider the possibility that you may want to
plan for the future by agreeing to sell the busi-
ness to a valuable employee who is willing
and able to take it over. In that situation, you
might decide to sign a buy-sell agreement with
the employee. This will assure the employee
that he or she will be taking over some day,
and you’ll know that you or your inheritors
will receive payment when ownership of the
company is transferred to the employee upon
your death.
You own the business with your spouse. If
you’ve been married a long time and have a
good, solid marriage, you probably won’t need
a buy-sell agreement. It’s unlikely that either of
you will want to leave the company unless you
both do. And if one of you dies, the other one
probably will inherit the ownership interest.
On the other hand, if you haven’t been mar-
ried long, or your future with your spouse is
unsure, a buy-sell agreement can make sense.
You own the business with one of your chil-
dren. If you plan to transfer part or all of your
business to your child, a buy-sell agreement
isn’t required. You can arrange the transfer
through a regular contract or your will or a
trust. But even here, you may want to sign a
buy-sell agreement. It’s always possible, for ex-
ample, that your child will die or want to leave
the business before you do. A buy-sell agree-
ment can address this and other possibilities.
PREPARING FOR OWNERSHIP CHANGES WITH A BUY-SELL AGREEMENT 5/5
2. Providing a Guaranteed Buyer
for Your Ownership Interest
As we’ve seen, a buy-sell agreement can protect
your company by making sure that an outsider does
not disrupt the business by becoming an owner
without the approval of the owners. But a buy-sell
agreement can also help you individually if you
ever reach the point where you want or need to sell
your ownership interest.
Obviously, it can be quite difficult to sell a less-
than-100% share of a small business. There may be
no market at all for a minority interest. A person
interested in buying into a small business will nor-
mally not find it attractive to be in business with
strangers and to have very little say in how the
business is managed. This lack of a true market for
your interest can be a problem for you and your
family. The time may come when you want to leave
the business but your co-owners may be unwilling
to pay you a fair price for your interest. If that hap-
pens, you may be stuck with a share of the com-
pany you can’t sell. The same thing can happen if
your heirs inherit your piece of the company.
EXAMPLE: Norm, Betty, and Phil form a small
corporation, each receiving one third of the
shares. They neglect to sign a buy-sell agree-
ment. Three years later, Norm dies unexpect-
edly. His wife and two children inherit his
shares. They’d like to sell the shares to raise
money for college and other living expenses
but can’t find an outside buyer. Knowing this,
Betty and Phil buy Norm’s shares for a pittance,
leaving Norm’s family in dire economic straits.
A good buy-sell agreement can avoid an unfortu-
nate outcome like this by requiring the company or
the remaining owners to pay a fair price if your in-
heritors want to sell your interest in the business.
You accomplish this by putting a “Right-to-Force-a-
Sale” provision in your buy-sell agreement, which
requires the company or the continuing owners to
buy you out if you die, and sometimes under other
circumstances. (The agreement can also provide
that the company purchase life insurance on its
owners, to fund the future purchase of a deceased
owner’s interest.) This can protect you and your in-
heritors from taking a financial hit if the company
or continuing owners refuse to buy your interest at
a fair price or from becoming embroiled in bruising
negotiations over what will happen to your owner-
ship interest.
Let’s see how a buy-sell agreement could have
changed the grim outcome for Norm’s family in the
above example.
EXAMPLE: Norm, Betty, and Phil form a small
corporation, each receiving one third of the
shares. Wisely, they sign a buy-sell agreement
containing a Right-to-Force-a-Sale clause, which
kicks in if one of them dies. The clause requires
the surviving owners to buy the interest of an
owner who’s died, assuming the estate repre-
sentative, trustee, or inheritors want to sell it.
Three years later, Norm dies unexpectedly.
His wife, as representative of his estate, invokes
the Right-to-Force-a-Sale clause. Since the
agreement required the purchase of life insur-
ance policies on each owner, Betty and Phil can
easily buy out Norm’s shares at the price in the
agreement by using the insurance proceeds.
Norm’s wife spends the money for college ex-
penses for the children and for other living ex-
penses.
A buy-sell agreement can also require the com-
pany or remaining owners to buy your interest in
other situations as well. For instance, you may want
to retire or stop working, or you may become men-
tally or physically disabled. If you don’t have a buy-
sell agreement in these situations, there’s no guar-
antee that you’ll get a fair price for your business
interest.
5/6 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
3. Setting a Fair Price and
Providing a Workable Method
for a Buyout
A well-prepared buy-sell agreement can set a price
for interests in the business—or a formula for set-
ting a price. This can eliminate lengthy disputes and
unpleasant lawsuits about the value of an owner’s
interest. Equally important, the agreement can pro-
vide a mechanism for how the departing owner (or
his or her family members) will be paid. Having to
come up with a lump-sum payment for a departing
owner’s interest, for example, may create financial
stress for the company or the remaining owners. As
a solution, a buy-sell agreement may provide for
payments to be made in installments over a number
of years. Or maybe the payments will come from
life or disability insurance that the company buys
for each owner.
Be forewarned that figuring out a fair price in
advance of a buyout scenario is no easy task. You
and the other owners will be trying to arrive at a
price that, years from now, will represent the true
value of the company. You can’t know today if
your business will prosper in the years ahead or
struggle to make a profit. And since there’s no pub-
lic market for small business interests, it’s hard to
make comparisons with interests in similar busi-
nesses—not that such information would be of
great help anyway. Each industry and small busi-
ness is different; comparative data from other com-
panies has limited value. Still, picking a fair price—
or a formula for setting the price—is essential if the
buy-sell agreement is to do its job.
There are five basic methods for setting a buy-
out price—all of which are explained clearly and in
great depth in How to Create a Buy-Sell Agreement
& Control the Destiny of Your Small Business, by An-
thony J. Mancuso and Bethany K. Laurence (Nolo).
Typically, you’ll set a price for the business as a
whole—or a formula for determining that price, and
the interest of an owner will usually be a percent-
age of that price. For example, if the entire business
is worth $500,000, the interest of a 25% owner will
be worth $125,000 for buy-out purposes. Let’s
briefly look at the most common methods for valu-
ing a company for purposes of a buyout:
a. Valuation Method 1—Agreeing on
a Fixed Price in Advance
Using this method, you simply agree on a price for
the business as a whole and put that number in
your buy-sell agreement. This agreed-value or fixed-
price method is simple and certain. However, it’s
hard to pick a price that will reflect the value of the
business throughout its life—the price you decide
on today can quickly become outdated. So if you
use this method, you will want to provide that the
number will be updated each year.
b. Valuation Method 2—Book Value
The book value of a company is generally its assets
minus its liabilities as shown on the company’s
most recent year-end balance sheet. Because the
book value is basically a snapshot of the company’s
finances on a given day, it doesn’t give information
about the profitability of the business. Also, book
value may not reflect assets such as customer good-
will that reflect the profit-making ability of the com-
pany. Compared to other formulas for determining
value, the book value method usually results in the
most conservative (lowest) value for a business.
c. Valuation Method 3—Multiple of
Book Value
If a small business has been up and running for
several years, its real value is probably greater than
its book value. The multiple-of-book-value method
takes into account intangible assets that add to the
worth of the business—assets such as goodwill, pat-
ents, copyrights, brand names, and trade names.
PREPARING FOR OWNERSHIP CHANGES WITH A BUY-SELL AGREEMENT 5/7
You might decide that the price of the business
should be, for example, two times its book value or
three times its book value.
d. Valuation Method 4—
Capitalization of Earnings
This method is best suited to established compa-
nies, since it measures the value of a business by its
past profits. If your company is just starting out or
hasn’t been around very long, you can’t use this
method because you have no earnings history.
But after your company has produced a good
profit for several years, you may want to shift over
to this method. Here’s how it works. You first deter-
mine the company’s annual earnings, or profit, by
subtracting the cost of doing business from gross
revenues. Next you multiply the earnings by a num-
ber called a multiplier. The number you choose
should depend, to some degree, on your company’s
industry and also on prevailing interest rates. Gen-
erally, you’ll apply the multiplier to your company’s
average annual earnings for a “base earning period”
of three years or longer.
e. Valuation Method 5—Appraisal
Method
Your buy-sell agreement can simply provide that at
the time of a buy-out, a professional business ap-
praiser will establish the value of the business. Ac-
tually, you may want to provide for two appraisers.
Typically, as part of the buy-out process, the buyer
(usually the company or remaining owners) and the
seller (for instance, the departing owner or the rep-
resentative of a deceased owner’s estate) each
choose an appraiser to value the company. If they
come up with the same price, that value is used. If
they come up with close prices, the parties may be
able to negotiate and agree on a price. But if the
two appraisers are far apart on the price, the agree-
ment may require them to choose a third appraiser
who will set the price. A drawback is that the ap-
praisal method can be costly and time-consuming.
B. Where to Put Your Buy-Sell
Provisions
You may be wondering what kind of document
should hold your buy-sell provisions. Basically, you
need to choose between putting the provisions in a
separate buy-sell agreement and adding them to an-
other document that may already be in existence—
for example, your corporate bylaws, your LLC oper-
ating agreement, or your partnership agreement.
Here are my recommendations.
1. Corporations
If you do business as a corporation, you can add
your buy-sell provisions to your organizational
documents—either your articles of incorporation or,
more likely, your bylaws. Or, you can adopt a sepa-
rate agreement, often called a shareholders’ agree-
ment in the corporate context. I believe that the lat-
ter approach—adopting a distinct agreement—is
best. You’re emphasizing the importance of these
provisions, so that an owner can’t later claim sur-
prise when another owner asserts the terms.
If you follow this recommendation, it’s a very
good idea to refer to the separate buy-sell agree-
ment in the bylaws. This can help head off a legal
challenge by someone looking for a legal way to
escape from the buy-sell terms.
Whichever approach you take, make sure your
buy-sell provisions don’t conflict with the existing
provisions of your articles of incorporation or by-
laws. You may want a lawyer to help you with this
consistency check.
To make sure that potential buyers of your corpo-
rate stock as well as potential creditors know about
the buy-sell agreement, add language to each stock
certificate stating that the share is subject to the terms
of a shareholders agreement. This statement is called
a stock certificate legend.
5/8 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
2. LLCs and Partnerships
For a partnership—whether general or limited—the
partnership agreement is the primary (and, usually,
only) agreement among the business owners. Simi-
larly, for an LLC, the operating agreement is the pri-
mary agreement between owners. So for partner-
ships and LLCs, I recommend that you place your
buy-sell provisions in the partnership or LLC operat-
ing agreement itself. You’ll want to make sure, of
course, that the buy-sell terms mesh well with the
other provisions of the agreement. A lawyer can
help with this chore.
Perform a Consistency Check on
Your Buy-Sell Provisions
Whether you adopt your buy-sell provisions as
part of a separate agreement or add them to
your bylaws, partnership agreement (discussed
in Chapter 2), or LLC operating agreement (dis-
cussed in Chapter 4), make sure they do not
conflict with the current provisions of those
organizational documents.
Mostly, you want to check to make sure an
existing provision in one of those documents
does not prohibit, or impose addition rules on,
any of the buy-sell provisions that you’re add-
ing. For example, if your partnership agree-
ment prohibits the transfer of ownership inter-
ests to outsiders, but the buy-sell provision you
want to use allows an owner to sell to an out-
side buyer under certain circumstances, you
will want to amend your partnership agree-
ment to delete the restriction on transfers.
Prevent legal termination of partnerships
and LLCs. One area that partnerships and
LLCs need to cover in their buy-sell provisions is what
happens to the company when an owner leaves (sells
out, retires, or dies). Some state laws say that the part-
nership or LLC automatically dissolves when an own-
ers leaves unless the partnership agreement or LLC op-
erating agreement says otherwise or unless the re-
maining owners vote to continue the company within
90 days. If the owners don’t vote to continue the com-
pany in that period of time, the company is consid-
ered dissolved and must file dissolution papers with
the state. To avoid risking the future of the partnership
or LLC and having to take a vote after an owner
leaves, as part of your buy-sell provisions state that the
partnership or LLC continues without a vote of the
owners when an owner leaves the company.
C. When to Create a Buy-Sell
Agreement
The key to a successful buy-sell agreement is com-
ing up with a reasonable plan early on, before any-
one knows who will be most affected by it. At the
outset, when you’re just getting started, your con-
cerns and those of the other owners will be roughly
the same because no one knows who will be the
first to leave. Because at that early point no one
wants to sell out, everyone has the same interest in
crafting an agreement that’s fair to everyone.
With a brand-new business, you and your co-
owners can start by putting together a very simple
buy-sell agreement. You can concentrate on giving
your company or continuing owners the right to
buy a selling or departing owner’s interest at a fair
price, or a price to be set according to a simple for-
mula such as book or appraised value.
After you’ve been in business a few years, you
may want to come up with a more complex agree-
ment. The same holds true if your business’s assets
have become quite valuable or there’s a concern
about limiting estate taxes. While it’s always a good
idea to have a small-business lawyer look over your
buy-sell agreement before it’s final, it’s especially
important to get a lawyer’s help in creating a more
sophisticated agreement.
CHAPTER
6
Naming Your Business and Products
A. Business Names: An Overview ....................................................................... 6/4
B. Mandatory Name Procedures ......................................................................... 6/7
1. Corporations .......................................................................................... 6/7
2. Limited Liability Companies ....................................................................... 6/8
3. Assumed and Fictitious Names ................................................................... 6/9
C. Trademarks and Service Marks ..................................................................... 6/10
D. Strong and Weak Trademarks ...................................................................... 6/11
1. Distinctive Terms .................................................................................... 6/11
2. Ordinary Words ................................................................................... 6/12
E. How to Protect Your Trademark ..................................................................... 6/12
F. Name Searches ......................................................................................... 6/13
1. Conducting Your Search ......................................................................... 6/13
2. Analyzing Your Search Results ................................................................. 6/15
6/2 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
Trademark Terminology
Trademark: A word, phrase, design, or symbol that identifies a product brand—such as Compaq com-
puters, Nike shoes, Kodak cameras, Xerox photocopiers, and Marathon gasoline.
Service Mark: A word, phrase, design, or symbol that identifies the provider of a service—such as Burger
King (fast foods), Roto-Rooter (sewer-drain service), Kinko’s (copy centers), and Blockbuster (video
rentals).
Mark: Sometimes used to refer to both a trademark and a service mark, because the terms are nearly,
but not completely, interchangeable.
Corporate Name: The name of a corporation as registered with one or more states. Examples: Time Inc.;
Sony Corporation. The corporate name refers to the corporation only, and not to any product or
services it offers.
Trade Name or Business Name: The name used to identify a business, as distinct from the product or ser-
vice it offers. It may be the same as the product or service name; for example, Sony Corporation
sells electronic equipment under the Sony trademark; McDonald’s Corporation uses the service
mark McDonald’s on its fast-food service. Or the trade name or business name may be different—
for example, General Motors Corporation sells cars under the Buick trademark.
Assumed Name or Fictitious Name: A business name different from the owner’s name. Example: Laura does
business as Coffee Express. Partnerships and (in many states) corporations may also use assumed
or fictitious names. In most places, you must register a fictitious name. (See Section B3.)
Federal Trademark Register: A list of all trademarks and service marks registered with the federal govern-
ment. To be accepted, a trademark or service mark must be distinctive and not confusingly similar
to an existing mark. All states maintain trademark registers too, and some maintain service mark
registers; preexisting federal trademark rights have priority.
N
aming your business and products may not
be as simple as it first appears. For one
thing, you need to comply with legal proce-
dures mandated by state law. If you incorporate, for
example, or form a limited liability company, you
must choose a corporate or LLC name acceptable to
your state’s business filing office. And all busi-
nesses—corporations, LLCs, partnerships, and sole
proprietorships—must comply with laws dealing
with the registration and possible publication of as-
sumed names or fictitious names. (See Section B.)
Other legal procedures having to do with busi-
ness names are not mandatory, but it nevertheless
makes good sense to follow them. For example, be-
fore using a cool-sounding name—especially one
that will also be used to identify your products and
services—it’s extremely smart to find out whether
someone else already has rights to the name and, as
a result, can legally limit how you use it or tell you
not to use it at all. This normally involves at least
two steps. To avoid a claim of unfair competition,
your first step is to do a local name search to make
sure that no local business in your field uses a simi-
lar name. Don’t start Jimmy’s French Laundry if
there’s already a Jenny’s French Laundry a few
miles away.
NAMING YOUR BUSINESS AND PRODUCTS 6/3
Step two involves making sure you gain maxi-
mum protection for your trademarks or service
marks—names you’ll use to identify your products
or services. Especially if you’re looking for compre-
hensive protection for a trademark or service mark,
you’ll want to first carefully check and then register
the mark under federal and state trademark laws.
(See Sections C, D, and E.)
Just how much effort and expense should you
sensibly invest in protecting the name of your busi-
ness, product, or service? The answer depends on
many factors, such as: the size of your business, the
size of the market that you’ll operate in, the type of
product or service, and your expectations for
growth and expansion.
As a general rule, the more customers your busi-
ness will reach, the more you need to be sure you
have the exclusive right to use your chosen name
within your business or product niche. For ex-
ample, if you’re starting a local computer repair ser-
vice, you won’t need as much business name pro-
tection as if you were planning to sell a new line of
low-fat salad dressings in all 50 states. But be aware
that because of the Internet and other electronic
communication methods, the number of small busi-
nesses that compete with one another is rapidly
growing, meaning the need to do in-depth name
searches and to consider the implications of trade-
mark law is also rapidly growing.
Business Names and Trademarks:
They Are Not the Same
Legally, there are two main types of business
names:
the formal name of the business, called its
trade name (Apple Computer Inc., for ex-
ample), and
the names that a business uses to market
its products or services, called trademarks
and service marks (Macintosh brand com-
puter, for example).
Use of either type of business name can
raise legal issues, but the most serious lawsuits
tend to focus on the trademarks and service
marks a business uses to market its products or
services.
By being the first to use and register a
trademark or service mark, a business can pre-
vent another business from using the same or
very similar mark. Laws that protect the integ-
rity of trademarks and service marks are in-
tended to prevent consumers from being un-
fairly confused about the source of products
and services. A buyer should be able to rely on
the fact that the source of a computer bearing
the trademark “Macintosh” is Apple Computer
Inc., which has registered Macintosh as a trade-
mark.
Obviously, if you’re choosing a name to use
as a trademark or service mark, you need to
conduct a full search to make sure no other
business is already using that name as a trade-
mark or service mark. What may be less obvi-
ous is that you need to make exactly the same
kind of search if you plan to use your business
name to identify your goods or services—as
when Ford Motor Company markets cars under
the brand name (trademark) Ford.
6/4 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
For a thorough discussion of business
names: See Trademark: Legal Care for Your
Business & Product Name, by Stephen Elias (Nolo).
That book discusses in great depth how to choose a
legally protectable name and offers step-by-step in-
structions on how to file a federal trademark regis-
tration. Also check out the Nolo website (www.nolo
.com) where you’ll find extensive legal information
on patents, copyrights, and trademarks.
A. Business Names: An
Overview
Complying with the few mandatory legal proce-
dures for naming your small business is relatively
simple. (See Section B.) For some very small, local
businesses, meeting these requirements and doing
nothing more may be adequate.
EXAMPLE: Jeff wants to start a local word pro-
cessing service called “Speedy Typing for All.”
He’ll be a sole proprietor. Since his is a small,
unincorporated local business, he is probably
safe enough if he registers the name as an as-
sumed or fictitious name. In most states, he will
register it at the county level, but some states
require registration at the state level and also
require publishing the name in a newspaper.
(See Section B for more on assumed and ficti-
tious names.) Jeff probably doesn’t need to
spend time and money to register the name as a
state trademark or service mark. With a descrip-
tive name and a small local business, there’s
little likelihood that the customers of any other
business would be misled, so there’s not much
to protect. However, Jeff should check to be
sure there are no other word processing ser-
vices in his area using the same or a very simi-
lar name. If there are, Jeff should change his
name or risk a claim of unfair competition. If
Jeff wants to go the extra legal mile, he should
check his state’s Trademark Register and the
Federal Register to see if other “Speedy Typing”
businesses are registered. (See Section F for
how to do a trademark search.)
Until quite recently, a wide range of local busi-
nesses—small retail stores, repair services, and craft
studios, for example—didn’t need to worry about
registering a trademark or service mark. And to
avoid possible claims that they were unfairly using
another business’s name, they could feel relatively
secure if they checked for possible name conflicts
in state and local business directories and Yellow
Pages with no need to do a more formal state or
federal trademark search.
But today, the rules of the game are dramatically
different. The reason is that in the world of the
Internet, mail order, and rapidly growing national
chains, the idea of “local” isn’t what it used to be.
Today, even modest-sized businesses must consider
taking name protection steps that used to be the
sole concern of larger, more expansive enterprises.
For example, you might think you have no problem
if you’re choosing a name for a shoe store in a
small town. Think again. If you happen to pick a
name that’s similar to a shoe store that sells on the
Internet, you are very likely to be accused of trade-
mark infringement and probably forced to change
your business name, even though the online store’s
headquarters is located 2,500 miles away.
NAMING YOUR BUSINESS AND PRODUCTS 6/5
Like many other business owners, you may de-
cide to operate a website. If so, you’ll need to
select a domain name—a unique address that
computers understand and customers can use to
find you. The issues involved in choosing a do-
main name range from getting your hands on an
available one to avoiding trademark lawsuits
based on your choice of name.
A good domain name should be memorable,
clever, and easily spelled. Unfortunately, many of
the best names are already taken. To see if the
name you have in mind has been registered, go
to www.networksolutions.com. This site allows
you to search for a particular name. For example,
if you are starting a speed typing business, you
might check “speedy.com.” If you find that
speedy.com is already taken, the
www.networksolutions.com website allows you
to peruse other possibilities. After you enter rel-
evant keywords (such as quick, speedy, and typ-
ing), you’ll get a list of related names that are still
up for grabs.
Once you’ve found an available name, you’ll
need to make sure it doesn’t conflict with some-
one else’s trademark. If your choice will cause
customer confusion between your company and
another, you’re safer choosing another name.
This is true even if the other business is half-
way across the country. Once you’ve estab-
lished a Web presence, you are in competition
with businesses around the globe, and must
address trademark issues equally broadly. A
generic name such as “coffee.com” will keep
you safest from lawsuits, but will also leave
you unable to argue that other businesses can-
not legally use a very similar business or do-
main name—you’ll need to strike a balance.
After you’ve chosen an appropriate domain
name, you can register it online with a service
such as Network Solutions, at the website men-
tioned above. Some businesses register under
more than one name, or register common mis-
spellings of their names.
Courts are still grappling with the issues
surrounding domain names and trademark law,
and there’s much more to know than I can
cover here. For detailed and up-to-date informa-
tion on choosing and registering domain names,
as well as avoiding domain name conflicts,
check out Nolo’s free Internet Law Center at
www.nolo.com. Also read Domain Names: How
to Choose & Protect a Great Name for Your
Website, by Stephen Elias and Patricia Gima
(Nolo).
Doing Business on the World Wide Web
6/6 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
These days, about the only time you might be
able to ignore thinking about trademarks and ser-
vice marks is if you have a tiny, local business that
uses your own name—or a very common name—to
market goods and services locally. In short, if you
plan to sell services using your own name (Harvey
Walker Roof Repair) or if yours will be a one-per-
son, home-based business such as a graphic design
service (A+ Design), you’re not likely to have a
trademark problem.
But if your business is just a little bigger, such as
a large camping equipment store (Wilderness Out-
fitters), or sells goods or services beyond a very lo-
cal or industry-specific niche (Lamps.com Online
Lamp Store), you really should take time to under-
stand the basics of trademark law (Sections C, D,
and E)—and conduct a name search to see if some-
one else in your field is already using your pro-
posed name (Section F).
The reason to be absolutely sure you have the
legal right to use your chosen business name is
simple: You don’t want to invest time and money in
signs, stationery, and ads for your business and
then get a nasty letter from a large company that
claims a right to the name you’re using and threat-
ens you with a trademark infringement lawsuit. Just
defending such a case in federal court can cost you
upwards of $100,000, meaning that even if you’re
sure that you’re in the legal right, you’ll probably
wind up changing your name just to duck the law-
suit—no fun, given the investment you’ve already
made.
If you decide that you want the protection
of federal or state trademark registration:
See Trademark: Legal Care for Your Business &
Product Name, by Stephen Elias (Nolo). You can
probably handle the registration process yourself, but
if you prefer to use a lawyer, the book will make you
better able to take advantage of your lawyer’s assis-
tance.
Relying on a State-Filing Search May
Not Be Adequate
When you form a corporation or LLC, the state
filing office will check to see whether your pro-
posed business name is the same as or confus-
ingly similar to one already on file. If so, your
name will be rejected. But just because your
name is accepted by the state filing office
doesn’t mean your business name is safe to use.
That’s because these offices don’t check state or
federal trademark registers. In short, even
though a name may be available in your state to
identify your business, you may run into costly
trademark infringement problems if you also
use it to identify your products and services.
EXAMPLE: Tony and Lars form a corpo-
ration that will design state-of-the-art
sound systems for restaurants and jazz
clubs. Their name—The Ears Have It
Inc.—has been cleared by the secretary
of state for their state. Can they now
safely use this name as a service mark to
market their services? No. When the sec-
retary of state cleared the corporate
name, it simply meant that the name
didn’t duplicate the name of another cor-
poration in that state. Another company
may have already been using the name
as a trademark or service mark. This
wouldn’t show up in the secretary of
state’s corporate name records.
Since Tony and Lars are hoping to mar-
ket their services in several states, they
(or a name search company they hire)
should do a thorough search, including
checking federal and state trademark reg-
isters. If they don’t, they may inadvert-
ently find themselves in conflict with a
company that’s already using the name.
If they find that their proposed name is
clear, they should think about registering
it as a federal trademark or service mark.
NAMING YOUR BUSINESS AND PRODUCTS 6/7
B. Mandatory Name
Procedures
As mentioned, there are name-related legal tasks
that every business must attend to.
1. Corporations
Part of the process of creating a corporation is
choosing a corporate name. Most states require cer-
tain words or abbreviations in your corporate name,
so the public can recognize that your business is a
corporation. This puts them on notice that, in gen-
eral, you’re not personally liable for debts of the
corporation. (See Chapter 1 regarding limitations on
the liability of corporate shareholders.)
Each state has its own laws dealing with what
words you must include in your corporate name, so
check your own state’s statute. Most states will send
you an information packet along with a sample
printed form for the articles of incorporation. Typi-
cally, the state will require one of the following in
your official corporate name: Incorporated, Corpo-
ration, Company, or Limited, or the abbreviations
Inc., Corp., Co., or Ltd. If the name doesn’t include
one of the required terms, the state won’t accept
your corporate filing.
The law in your state will also likely list some
words that can’t be included in your corporate
name or that can be used by only certain types of
businesses.
Words That Are Typically
Limited or Prohibited
Bank, banking, co-operative, engineering, trust,
National, Federal, United States, insurance, ac-
ceptance, guaranty, pharmacy, credit union,
medical, architect, indemnity, thrift, certified
accountant, Olympic, surveyor.
This is by no means a complete list. For ex-
ample, in New York you need the approval of
a department of state government to use the
words Benefit, Council, or Housing in your
corporate name.
To learn about the prohibited or limited words
in your state, start by calling the office where you
file the articles of incorporation. This is usually the
secretary of state or the corporate commissioner’s
office. If they can’t or won’t tell you, go to a law
library or to Nolo’s online legal research center
(www.nolo.com) and look up the statute sections
dealing with corporations.
Building Your Reference Library
Consider buying a copy of your state’s corpo-
ration statutes; it will be handy for answering
other legal questions as well. Of course, a law-
yer can also let you know about your state’s
corporate name requirements.
Most states will reject a corporation name that’s
the same as one already on file or that’s confusingly
similar to the name of an existing corporation. If
this happens to you and you’ve really got your
heart set on the name you’ve picked out, there may
be a way to get around the rejection. One approach
is to change the name slightly or add something to
6/8 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
it. Even a relatively small change may result in ap-
proval of the name.
Or in some states, you can use a similar (but not
identical) name if the prior holder of the name con-
sents in writing. The document in which the other
company gives its consent will have to be filed with
the office that accepts corporate filings. Obviously,
you’re most likely to get cooperation from the other
corporation if your business involves a completely
different product or service.
EXAMPLE: Country Squire Inc. sells wood-burn-
ing stoves in the southern part of the state. It
consents in writing to the use of the name
“Country Squire Inn Inc.” by a new corporation
that will run a bed-and-breakfast in the north-
ern part of the state. With the consent on file,
the state corporations commissioner accepts the
Country Squire Inn Inc. incorporation papers.
To avoid filing your corporate papers and then
receiving word three weeks later that your name
has been rejected, in many states you can call the
government office that receives incorporation pa-
pers and ask whether your proposed name is avail-
able. They may give you preliminary clearance by
phone if the records show that no other corporation
in your state is using the same or a similar name.
Watch how you use the name. The fact
that the state filing office accepts your corpo-
rate name doesn’t assure that you have the exclusive
right to use the name in your state. An unincorpo-
rated business may already be using it as its trade
name in your state. Or another business—whether
incorporated in your state or elsewhere—may be us-
ing the name as a trademark or service mark. De-
pending on the situation, the prior use often gives the
user the right to legally prevent your use of the name
if your use of the name would be likely to confuse cus-
tomers. It’s always prudent to check further to avoid
conflicts with other users. (See Section F for how to
conduct a name search. For how to protect a name as
a trademark or service mark, see Section C.)
If you expect some delay between the time you
choose a name and the time you file your incorpora-
tion papers, find out if your state lets you reserve your
preferred corporate name. Many states allow you to
tie up a corporate name for two to four months by
simply filing a form and paying a small fee.
2. Limited Liability Companies
The procedures for LLC names are very similar to
the procedures for corporate names. When you pre-
pare the Articles of Organization for your LLC,
you’ll need to include its name. If the proposed
name—or one similar to it—is already in use by an-
other LLC on file with the LLC filing office, your Ar-
ticles of Organization will be sent back to you
unfiled. To avoid this inconvenience, it’s wise to
check the availability of the name before you file
the Articles.
Your LLC will have to include certain words or
abbreviations that let people know its legal status.
Examples include:
Limited Liability Company
Limited Company
Ltd. Liability Co.
L.L.C.
LLC.
The list of words and abbreviations varies a bit
from state to state, so check the law in your state to
learn all the possibilities.
Here’s a shortcut for picking a required
LLC designator: Ending your LLC name with
the words “Limited Liability Company” will meet the
name requirements of all states except Florida and
Iowa; in those two states, “Limited Company” or
“L.C.” is required.
As with a corporation, your state law may pro-
hibit you from using certain words in your LLC
name—words, for example, that refer to banking,
insurance, trust, or financial services. And again, as
with a corporation, your state filing office won’t ac-
NAMING YOUR BUSINESS AND PRODUCTS 6/9
cept your proposed LLC name if it’s the same as or
very similar to an LLC name that’s already on file.
Your state may also cross-check the name against
the names of non-LLC entities—such as corpora-
tions and limited partnerships—that are required to
register with the state. Your name will be rejected if
it’s too close to one of these.
For an in-depth discussion of choosing a
name for your LLC: See Form Your Own
Limited Liability Company, by Anthony Mancuso
(Nolo).
3. Assumed and Fictitious Names
Sole proprietors sometimes choose to do business
under names different from their own names, and
partnerships usually select a partnership name other
than the full names of all partners. Corporations and
limited liability companies may also decide to do
business under names different from their official
corporate names. Depending on state law, these
adopted business names will legally be called “as-
sumed names” or “fictitious names.” If your business
uses such a name, you probably must register it.
a. Sole Proprietorships and
Partnerships
If you’re planning to do business as a sole propri-
etor or partnership, in most states you’re required to
file an assumed name or fictitious name certificate
with the designated public office—usually at the
county level—before you start doing business. Gen-
erally, there’s a printed form for you to fill out, and
you’ll probably have to pay a small filing fee. In
some states, the registration is good for a limited
period, such as five years, and must be renewed.
State law may also require that you publish notice
of your business name in a local newspaper.
States require you to file the certificate for a
simple reason: It lets members of the public know
who is behind the name. If you don’t register your
assumed or fictitious name, you can have both legal
and practical problems. For one thing, in many
states, you may not be able to sue on a contract
made or other transaction done under the business
name. And in some states, you may be fined. In a
number of states you can’t open a bank account in
the name of your business without filing.
Terminology
Some people refer to an assumed name or a
fictitious name as a “DBA.” That’s short for
“doing business as”—for example, Albert White
doing business as Al’s Cabinet Shop. On legal
documents such as contracts and lawsuits, this
may appear as: Albert White d/b/a Al’s Cabinet
Shop.
b. Corporations and LLCs
Most corporations and limited liability companies
operate under their corporate or LLC name, which
is of course on file with their state filing office. If,
however, a corporation or LLC decides to do busi-
ness under a different name, many states require it
to file an assumed or fictitious name registration.
This involves completing a simple form and sending
it to the state filing office with a modest filing fee.
EXAMPLE: Miracle Widget Manufacturing Com-
pany, a corporation, wants to do parts of its
business under the name “Widco” and other
parts under the name “Industrial Innovators.” In
many states, it will have to register both of
these names as assumed or fictitious names.
It’s important to use your correct corporate or
LLC name, since this makes it more difficult for any-
one to claim that your business entity is a sham (be-
6/10 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
lieve it or not, lawyers call this “piercing the corpo-
rate veil”) and impose personal liability on you.
(See Chapter 3 for more on corporate liability.) If
you’re going to do business under a name that devi-
ates from the official name on your Articles of In-
corporation or LLC Articles of Organization, it’s es-
sential that the name be properly registered. That
way, you won’t jeopardize the immunity from per-
sonal liability that’s part of your reason for having a
corporation or LLC.
If your state doesn’t allow a corporation or LLC
to register an assumed or fictitious name, there may
be an easy way to reach this same end while com-
plying with state rules. You can use a preferred
business name in conjunction with your official cor-
porate or LLC name.
EXAMPLE: Contemporary Home Furnishings
LLC is established in a state that doesn’t allow
registration of assumed or fictitious names. The
company wishes to operate a lamp store called
“Bright Lights.” It does this by calling the lamp
store “BRIGHT LIGHTS” and then in smaller
print adding “a division of Contemporary Home
Furnishings LLC” or by saying “BRIGHT
LIGHTS, owned and operated by Contemporary
Furnishings LLC.”
This puts everyone on notice that the business
isn’t a sole proprietorship or partnership—so you
continue to enjoy the benefits of limited personal
liability.
When it comes to products and services, a cor-
poration or LLC is completely free to use names that
are unrelated to its corporate or LLC name (as long
as these names don’t infringe someone else’s trade-
mark, of course). In fact, this is common. Apple
Computers, for example, sells products under the
name Macintosh, and the Ford Motor Company sells
Taurus automobiles.
C. Trademarks and Service
Marks
A trademark or service mark consists of two parts.
In reverse order, they are:
The noun that specifies what kind of product
or service you’re talking about. Examples: au-
tomobile; health plan.
The word or words that function as an adjec-
tive to identify a product or service as being
different from all others. Examples: Buick au-
tomobile; Saab automobile; Blue Shield health
plan; Kaiser health plan.
Think of these as the first and last names of
products and services. The last name identifies the
group; the first name uniquely specifies a member
of that group. As such, the trademark is used as a
proper adjective and is always capitalized.
Trademark law is the main tool that businesses
use to protect the symbols and words that identify
the origin of services and products. The basic
premise is that the first user of a distinctive (that is,
creative or unusual) name or symbol gets the exclu-
sive right to use it. If you’re the first user, you can
make that right easier to enforce if you register the
name or symbol with the federal trademark agency.
The principal purpose of registration is to protect
rights that already existed because you used the
mark first. But registration can also confer other
rights. For example, if you’re using an unregistered
mark without knowing that someone else used it
first, federal registration can give you priority in ar-
eas outside the first user’s market territory. The twin
goals of trademark law are:
to prevent businesses from getting a free ride
off the creativity of others in naming and dis-
tinguishing services and products, and
to prevent customers from being confused by
names that are misleadingly similar.
From a legal protection standpoint, the best
trademarks are coined words, such as Kodak or
Yuban, or arbitrary words such as Arrow for shirts
or Camel for cigarettes, which have nothing to do
with the product. Nearly as good are suggestive
trademarks—ones that hint at some aspect of the
NAMING YOUR BUSINESS AND PRODUCTS 6/11
product. For example, Talon suggests the gripping
power of a zipper.
Trademarks that consist of creative, unusual, or
otherwise memorable terms are called “distinctive”
and “strong.” If you’re the first to use such a name
or symbol, you can legally stop others from using it
in most situations.
Trademarks that consist of ordinary terms are
called “weak,” and competitors are free to use
them. Merely descriptive words (such as Easy Clean
for a cleanser) generally are not legally protectable.
These weak marks can, however, become strong if
they acquire a secondary meaning through prolonged
usage. If that happens, they may be federally regis-
tered and may also be protected under the law of
unfair competition if there’s a local conflict with a
similar mark. (See Section E, below.)
You can’t acquire any rights in the name of the
product itself; this is called a generic name. This
means you can’t adopt Bicycle or Refrigerator as
your trademark for your version of those products.
You can use the words as part of a distinctive name.
The law doesn’t allow a business to claim the
exclusive right to use descriptive words and generic
names because competitors also need to describe
their products. If you could tie up key words for your
own exclusive use, your competitors would be un-
duly restricted in describing their goods. Also, de-
scriptive terms aren’t particularly memorable and don’t
further the purpose of trademarks and service marks.
D. Strong and Weak
Trademarks
As noted earlier, with very few exceptions, only
strong trademarks or service marks have the full
protection of federal and state trademark laws. Re-
member, too, that trademark laws don’t automati-
cally protect a business name (the name of your
company); to be considered a mark, a business
name must be used to identify a product or service
in the marketplace.
A trademark is considered weak when others
can use it (or something similar) on products or ser-
vices that don’t compete directly with yours. Most
ordinary trademarks are weak. Examples: Liquor
Barn, Cuts Deluxe, Charlie’s Auto Parts, 10-Minute
Lube.
A trademark is considered legally strong when
others can’t use it or anything similar on related
goods or services. There are two kinds of strong
trademarks: ones that contain distinctive terms and
ones that contain ordinary terms that have acquired
distinctiveness through use.
1. Distinctive Terms
Distinctive trademarks are memorable, evocative,
unique, or somehow surprising—for example, 7-Up,
Lycra, or Cherokee apparel. The words themselves
have little or no descriptive function; they serve to
set the product or service off from others.
So if you’re naming a service or product and
want a strong mark, try for a name that is either un-
usual or used in an unusual way. A judge is likely
to treat a distinctive name as a trademark or service
mark and protect it from use by others—unless
someone else has used a similar trademark on the
same type of product or service first.
EXAMPLE: “Buick” distinguishes a line of cars
from others, and the name means nothing apart
from its trademark use. It’s a distinctive name.
Conversely, “Dependable Dry Cleaners” merely
tells you something about the business; it
doesn’t help you distinguish it from rivals who
might also advertise their services as reliable or
efficient. So the name would probably not
qualify for trademark or service mark protection
unless it had been in use for a long time and
developed a sizable following—that is, a sec-
ondary meaning.
6/12 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
2. Ordinary Words
Generic terms can’t be protected by trademark law;
original and distinctive words can be protected. But
what about other words used to identify products
and services—ordinary words that are neither ge-
neric nor distinctive? This category covers place
names (Downtown Barbers), surnames (Harris
Sales), words that describe the product or service
(Slim-Fast Diet Food) and words of praise (Tip-Top
Pet Shop). Ordinary words receive limited legal pro-
tection as trademarks. It’s more difficult to keep
others from using them or something similar.
Even a weak trademark can acquire limited pro-
tection under unfair competition laws. For example,
an ordinary name (a weak trademark) can be pro-
tected from someone else using the name in a con-
fusing way. The law of unfair competition is gener-
ally based on state law (statutes and judge-made
law) that supplements federal and state trademark
laws. Owners of weak and unregistered names can
get some relief from a rival’s use of the identical
name on the identical product or service in a com-
peting market.
Weak trademarks can become strong ones
through long use and extensive public familiarity
with the mark. A trademark that starts out being or-
dinary or otherwise weak (like Dependable Clean-
ers) can sometimes, over time and through use, be-
come identified in the public’s mind with a specific
product or service. When that happens, it can be
transformed into a strong trademark.
EXAMPLE: Chap Stick brand of lip balm was
originally a weak trademark. It simply described
the condition the product was designed to cure:
chapped lips. But it became strong as advertis-
ing and word of mouth helped the public de-
velop a clear association between the name and
a specific product. Over time, the name devel-
oped distinctiveness based on familiarity rather
than any quality inherent in the name.
Lawyers describe a trademark that has become
distinctive over time as one that has acquired a
“secondary meaning.” McDonald’s is another good
example of a weak mark that developed a second-
ary meaning over the years—and now qualifies for
broad protection.
E. How to Protect
Your Trademark
What do the words aspirin, escalator, cellophane,
and shredded wheat have in common? They are all
former trademarks that have entered our language
as product names. These words have lost their sta-
tus as trademarks and are now generic terms. Other
examples of former trademarks include harmonica,
linoleum, raisin bran, thermos, and milk of magne-
sia. In each of these cases, a business lost its exclu-
sive right to use a valuable trademark.
Here are some steps that your business can take
to prevent this from happening to your trademark.
Use your trademark as a proper adjective that
describes your product. You’ll notice that ads
refer to a Xerox copier, Jell-O gelatin, and
Band-Aid adhesive strips. If people continue
to use the words Xerox, Jell-O and Band-Aid
alone, these marks can easily go the way of
other trademarks like nylon, mimeograph,
and yo-yo.
Always capitalize the first letter of your trade-
mark. And at some place on each ad or pack-
age, say specifically that the trademark is
owned by your company.
If your trademark has been placed on the fed-
eral trademark register, consistently give no-
tice of that fact by using the ® symbol. If a
trademark isn’t federally registered or is regis-
tered only by a state, you may use the letters
TM” or “SM” to give notice of your claims. You
may not use ® unless your mark is in fact on
the federal register.
Take prompt legal action if other businesses
use your trademark without permission. A
trademark may become weakened or even
generic if others use it to describe their prod-
NAMING YOUR BUSINESS AND PRODUCTS 6/13
ucts and you do nothing about it. You or
your lawyer should send a letter by certified
mail (return receipt requested) demanding
that the infringement cease. If your demand is
ignored, be prepared to go to court to seek
an injunction—but first do a careful cost/ben-
efit analysis to satisfy yourself that it’s worth
the expense.
If you discover that a newspaper or TV pro-
gram has improperly used your trademark,
send them a letter. Keep a copy in your
records as proof that you have consistently
enforced your trademark rights.
F. Name Searches
There are compelling business and legal reasons to
conduct a name search before you lock in the name
of your business. As noted above, this is especially
true if you choose an unusual or unique business
name that will also be used to identify your prod-
ucts—Z Pop Inc., for example, will sell a new car-
bonated drink called Z. If someone else in your
field is already using this name and may even have
registered it as a state or federal trademark or ser-
vice mark, you will really be an infringer if you start
to use it (based on the fact that customers really are
likely to be confused as to the source of two busi-
nesses’ services and products). In such circum-
stances you can be forced to give up the name.
1. Conducting Your Search
Here are some self-help search techniques to see if
others are using a business name like the one you
have in mind:
Check state and county records where busi-
ness names are filed. To avoid a claim that
you’re unfairly competing with another local
business by using their name, start with the
records of your state’s office where corpora-
tions and LLCs are registered—usually the
secretary of state or corporations commis-
sioner—as well as the state office (if any) that
maintains a list of assumed or fictitious names
for corporations, LLCs, partnerships, and sole
proprietorships. In addition, if assumed or fic-
titious names are filed at the county or local
level, check the lists for the counties and lo-
calities in which you plan to do business now
or in the foreseeable future.
Check business directories and trade sources.
These include the phone books of all major
metropolitan areas, general business directo-
ries, and trade magazines for your industry. A
reference librarian should be able to help
you. Also, take a look at all online search en-
gines such as Google, Yahoo!, AltaVista, and
Excite to see if anyone is using your name.
Check trademarks and service marks regis-
tered in your state. The office that registers
trademarks and service marks in your state
should be able to tell you by phone if an-
other business has registered a name that’s
the same as or close to the one you’re think-
ing about. In some states, you may have to
request the information in writing and pay a
small fee for the search. It makes better
sense, however, to mount an even broader
search, checking on state registrations nation-
wide—a task made simple by using a com-
puter database (see below).
Check the federal trademark register. Since
goods and services are widely marketed over
6/14 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
the Internet as well as through mail-order
catalogues these days, your small business—
even though you think it’s local—may find
itself competing with national companies. It
makes sense to make sure you’re not infring-
ing on a trademark or service mark that’s
been federally registered. A large public li-
brary or special business and government li-
brary near you should carry the federal trade-
mark register, which contains trademark and
service mark names arranged by categories of
goods and services. Check it for potential
conflicts with your name. Also check the Offi-
cial Gazette for the most recent filings.
Performing a full search of all registered and un-
registered trademark sources involves time, effort,
and some cost. Also, since there is considerable
skill involved in doing an in-depth search, it often
makes sense to engage professional help. But fortu-
nately, there are three different levels of searches
and a small, local business can often get by with a
somewhat shallower search. The three levels are:
1. A direct hit federal register search, which
compares your mark with identical or very
similar federally registered (and pending)
marks in one or more trademark classes. This
is the quickest, cheapest, and most bare-
bones type search. A direct hit search is espe-
cially helpful when you’re trying to choose
among several potential names or trademarks
and want to narrow the field by discovering
and eliminating obviously unavailable names
or marks.
2. An analytical search, which compares your
mark with all registered and pending marks
(federal and state) that sound or look like
your mark. The search also covers marks that
mean the same thing or in some other way
might lead to customers’ confusion between
them and your mark. This deeper type of
search is more expensive and time-consuming
than a direct hit search.
3. A comprehensive trademark search,
which hunts for all possibly relevant unregis-
tered marks as well as for federal and state
registered (and pending) trademarks. Because
of its depth and breadth, this type of search is
the trickiest to do well and, as a result, the
most expensive and time-consuming.
For many businesses, especially those that plan
to operate regionally or nationally, a direct hit
search is only the first step to clearing a business
name. If the proposed name is distinctive, a more
thorough search—at least an analytical search—will
be appropriate.
EXAMPLE: Jamie is considering Geoscan as the
name of her new company. She does a direct
hit search and finds that no one else has regis-
tered that name. That’s reassuring. But since
Jamie plans to do business nationwide, she de-
cides that she can’t rely entirely on the direct hit
search and needs to dig deeper.
Jamie has chosen a fairly distinctive name, so
she is wise to take further steps. If your proposed
name is less distinctive (a “weak” mark), or your
business is small and local and you can live with
the possibility that an undiscovered prior user will
surface later, a direct hit search may suffice. A
search firm can do a direct hit search for a reason-
able fee. Or you can do the search yourself by us-
ing the federal government’s trademark database,
called TESS (for Trademark Electronic Search Ser-
vice). You’ll find it at the website of the U.S. Patent
and Trademark Office, www.uspto.gov. On the left
side of the home page under Trademarks, click
“Search.” To use TESS, you enter the business name
you’re interested in. The database will tell you if
someone else is using the name, and if so, will give
you the owner’s name, the date of registration or
application, and the goods or services it represents.
A deeper, analytical search looks for synonyms,
phonetic equivalents, alternative spellings, anagrams
(rearrangements of letters), and other similarities
that may create a potential conflict.
NAMING YOUR BUSINESS AND PRODUCTS 6/15
EXAMPLE: Jamie embarks on an analytical
search. She starts out by looking at the marks
that immediately surround Geoscan alphabeti-
cally (it turns out that Geoport and Geoscope
have been registered). Then she checks out all
the marks ending in -scan and all marks with
the sounds -eo or -osc in the middle. She also
searches for all the synonyms she can think of
(earthspan), and then anagrams (scanoge,
canesog) and alternative spellings (gioscan,
jeoscan, geoskan). This gives her a better idea
of potential conflicts.
It’s essential to perform this deeper search if you
want to make sure your business name or mark
isn’t likely to be challenged as being confusingly
similar to, or evocative of, an existing name or
mark. While in theory it’s possible for you to do an
analytical search using the TESS database, I recom-
mend you use another Internet resource, SAEGIS by
Thomson & Thomson at www.saegis.com. True,
even here, there’s a considerable learning curve—
and you will have to pay some fees. But the SAEGIS
search engine is simply better suited to analytical
searching than TESS.
Often, it’s wise to go beyond a direct hit search
and an analytical search. If you have a small, local
business, you should, in addition to a direct hit
search, check the Yellow Pages, newspapers, trade
and product journals, and any other source that
might show that another business is using the same
or a similar name or mark locally.
If your business elects to do a more comprehen-
sive search, you’d include not only an analytical
search of registered and pending trademarks, but
also an examination of Yellow Pages, trade directo-
ries, the Internet, product catalogues, and other in-
dustry sources. Because most disputes about names
and marks are resolved in favor of the first actual
user, you need to discover any actual use of the
proposed name—whether or not it’s officially regis-
tered.
Consider hiring a search firm. You can
reliably do a direct hit search yourself, but for
an analytical or comprehensive search, a search
firm is likely to produce more reliable results. It may
be well worth the cost—especially if you have a
strong and distinctive mark and will be investing
heavily in promoting your products or services under
that mark.
Search firms—which, unlike lawyers, don’t offer
legal advice—generally charge as follows:
direct hit search (for identical marks)—from
$30 to $100 per mark searched
analytical federally registered trademark
search (for similar or related marks)—from
$85 to $300 per trademark
common law search (for unregistered marks)
—from $100 to $200 per mark searched
comprehensive search (combining analytical
federal, state and common law)—between
$185 and $500 per mark searched.
The ranges of rates reflect variations in search
coverage, the type of report you get, the experience of
the searchers, and economies of scale. Be on the
lookout for firms that advertise an unusually low
price to draw you in, but then add on charges so the
overa