Given the spreading coronavirus, Coulter • Tateoka Attorneys at Law wants to do its part to help to contain the spread and to follow social distancing guidelines. We want to safeguard the health of our clients and our hard-working staff.

To protect everyone from any unnecessary risk of exposure to coronavirus (COVID-19), we are following these guidelines:

• Future appointments can be conducted by telephone or videoconferencing.
• You can choose to make an in-person appointment at our small, private law firm location, which has limited public traffic.
• We ask that if you’re feeling ill, you meet with us remotely and that you do not bring any children with you.
• We routinely clean and sanitize our office surfaces and workplace.
• Our staff also will not come into work if they show any signs of illness.

Rest assured that our team remains committed to providing you with high-quality legal services. At this time Utah courts are still open and functioning; however, access to the courthouses, hearings and trials are limited and status is subject to change.

These safety precautions will continue as long as needed and we encourage you to contact us if you have any questions or concerns or would like to schedule an appointment.

We appreciate your business and support!

Learn and prepare for:

• Funeral Planning
• Financial Planning
• Trust and Will Planning

Seminar will be held at:

Broomhead Funeral Home

Date and time:

Surrogacy can often be the only option for couples who want to have children but are physically unable to do so on their own. While there are many success stories of new happy families and surrogates who are glad they had the opportunity to help out, complications in other surrogacy arrangements have led the surrogacy process as a whole to be called into question.

In one high-profile case in Australia, two couples who had been lifelong friends entered into a surrogacy arrangement. They were so close that the couple who was unable to have children were the godparents for the children of the other couple. The mother who was unable to have children suffered from a heart condition that made pregnancy too risky and had been considering finding a surrogate overseas. When her friend learned of this, she wouldn’t have it and insisted on acting as the surrogate.

The two couples completed the usual medical and background checks, and everything appeared to be going well after the surrogate underwent in vitro fertilization. Trouble arose later in the pregnancy when the surrogate was no longer able to complete everyday tasks. She felt like her friends weren’t helping her enough with household chores she couldn’t complete on her own, with caring for her own kids, and with various expenses like maternity close. The disputes continued into the delivery room when the couples couldn’t even agree on how to announce the birth or what photos should be taken.

Eventually, the surrogate was reimbursed for most of her expenses, but she later became outspoken in favor of commercial surrogacy, calling it the only way to ensure that the surrogate was protected.
Commercial surrogacy  has been widely criticized as being almost like another form of prostitution. The fear is that poor women, especially from developing countries, will be exploited by richer couples who are unable to have children of their own.

While surrogacy may be controversial, it is similar to other debates about freedom of choice and how much protection people need. In any system without regulation, there is a risk that people will be so concerned with their own gain that they disregard potential harm to others and disputes may be difficult to regulate without a proper framework in place.

This doesn’t mean that surrogacy should be avoided just because certain aspects of it may be debatable. As it grows in popularity, governments are increasingly passing regulations to try to avoid repeats of prior complications. Australia has banned commercial surrogacy as a way to prevent exploitation, and they are continuing to put regulations in place to protect the health of all those involved in the process.

Surrogacy Laws in Utah

In the United States there are no federal regulations regarding surrogacy arrangements. Laws are passed at the state level and vary greatly state to state.

Utah’s surrogacy laws were based on this model act and can be found in Utah Code Ann. §§ 78-45g-801 to 809. The law outlines requirements for both the surrogate and intended mother to be able to enter into a surrogacy arrangement.

Requirements for the Utah surrogate:

• Must have had at least one prior pregnancy and delivery
• May not use her own eggs
• May not use her husband’s sperm
• Must be age 21 or older
• Must participate in counseling
• Must have been a Utah resident for at least 90 days prior to entering into the agreement
• Cannot be receiving Medicaid or other state assistance at the time of the agreement

Requirements for the intended mother:

• Must show that she is unable to carry a pregnancy or give birth
• At least one of her or her husband must provide gametes
• Must be age 21 or older
• Must participate in counseling
• Must have been a Utah resident for at least 90 days prior to entering into the agreement

Establishing a Surrogacy Agreement in Utah

In Utah, a surrogacy agreement is legally binding as long as the legal requirements have been met. Unlike in other jurisdictions, the surrogate cannot later decide to keep the child for herself. The primary requirement is that the agreement be validated in court. This allows the court to ensure that the requirements for a surrogacy arrangement have been met. An agreement that has not been validated is not enforceable, and parental rights and obligations will be determined under Utah’s Uniform Parentage Act. The Uniform Parentage Act was a model law initially passed in 1973 to give legitimacy to children not born to a married mother and father. Subsequent amendments added provisions for identifying the legal parents in surrogacy arrangements and other special circumstances.

A Utah Surrogacy agreement may provide for compensation to the surrogate, but it must be reasonable. This might include things like out of pocket expenses, someone to help the surrogate around the house late in pregnancy, and possibly compensation for unpaid time off from work. A “for-profit” type of arrangement would not be approved.

While the intended parents have full parental rights after birth, the surrogate has full control over her healthcare decisions during the pregnancy. This may include, if medically necessary, the decision whether to terminate the pregnancy.

One important note is that Utah’s requirement that the intended parents be married limits surrogacy agreements to heterosexual couples. While there is no explicit ban under the surrogacy laws, state law does not permit same-sex marriage, and thus a homosexual couple cannot meet the marriage requirements. Utah courts have previously ruled against equal parental rights for homosexual couples.

Cost of Surrogacy

Surrogacy can take two forms. Traditional surrogacy is where the surrogate’s own egg is inseminated, and gestational surrogacy is where a woman is implanted with an embryo that does not use her own eggs. Because Utah does not allow the surrogate to use her own eggs, it forces couples to use gestational surrogacy. Since this method requires medical treatment for two women instead of one, the costs can be as much as $13,000 — about 1.5 times the cost of in vitro fertilization.

Uncovered Areas

Although it may seem like Utah’s surrogacy laws are well-developed, they are still relatively new and don’t cover every possible circumstance. Most notably, the law allows a surrogate to terminate the agreement by providing written notice before she becomes pregnant without being liable. In at least two instances, this happened after the intended parents had spent thousands of dollars in counseling and other preparation costs and also cost them lost time and emotional distress. Other grey areas include who has parental rights if one or both of the intended parents die during the process, who makes medical decisions if health problems in the baby are detected prior to birth, and what happens if a court invalidates a surrogacy agreement based on previously unknown information.

Why Utah Parents Choose Surrogacy

Despite the potential complications, many parents still opt for surrogacy, and it may often be their only option for having children. Even though adoption may be available, the child would not be genetically related to them. Reasons for choosing surrogacy include failed attempts at in vitro fertilization, abnormal or absent uterus, repeated miscarriages, and health conditions that would make carrying a pregancy or giving birth dangerous.

And for every horror story that winds up in the courts, there are dozens of other positive outcomes. One Australian girl learned when she was 15 that she was born without a womb and would be unable to have a child of her own. Her sister promised her that when the time came, she would carry a child for her. When the time did come, with both sisters happily married, they did just that and received both psychological and legal counseling along with their husbands to make sure the process would go smoothly. Everything did go according to plan, and after the baby was born, the sisters said that they felt closer to each other than ever before.

How to Protect Yourself While Using a Surrogate Mother

As you’ve probably seen, surrogacy is the most legally complicated assisted reproduction option. This simply comes from the number of parties involved and the length of the arrangement. Rather than an anonymous donor or a child who is already born, the parties will be involved in the process from long before conception until after birth. Because of all of the conflicting rights and possible complications, surrogacy isn’t just something you can jump into, and simply relying on the established laws won’t fully protect your rights.

No matter how close the surrogate and intended parents are, it’s important to seek the advice of a Utah surrogacy attorney prior to entering into a surrogacy agreement. The goal isn’t to be prepared to fight each other in court but to make sure conflicts are prevented to begin with. Discussing each aspect of the surrogacy process will make sure the parties are truly in agreement about all issues and aren’t making assumptions that will lead to turmoil when they find out that they actually have a strong disagreement. It will also keep smaller disputes about things like who pays for what expenses from souring the relationship.

If you’re in Utah, contact Coulter Law Group. We specialize in reproductive law and will make sure your rights are covered no matter what happens during the surrogacy process.

San Diego Comic Con, that most famous of comic book and sci-fi conventions, is in a legal battle with neighboring Salt Lake Comic Con. The suit is one of copyright infringement, as San Diego is alleging Salt Lake has capitalized on its intellectual property to enhance its own convention. The heart of the issue come down to the similarity in names, which San Diego alleges can be confusing to convention-goers. While other cities in the United States have similar conventions and call them Comic Cons, the similar sounding names of San Diego and Salt Lake were enough for San Diego to single out Utah’s capitol city for suing.

Salt Lake City Comic Con Hires Attorney to Represent them in Business Dispute

Salt Lake is having none of it. In fact, Salt Lake has hired a lawyer from San Diego’s own state of California to represent them. The organizers of the Salt Lake convention have hired Sterling Brennan, an Orange County, California attorney to defend them against San Diego’s assertions that the two convention names are similar enough to cause a trademark violation. San Diego also alleges people may think the two conventions are associated with each other due to the similar names. Brennan is tasked with defending Salt Lake against these allegations and obtaining a court ruling that will allow them to retain their convention name.

Brennan and those who work for him are known to be among the best intellectual property lawyers in the country. Hiring him shows that Salt Lake means business when it comes to keeping its name. In business to business disputes like this, particularly intellectual property and trademark violation lawsuits, the legal waters can often be murky. The choice of Brennan as the attorney for the case ensures Salt Lake of getting a fair trial against the larger, better known, and more powerful San Diego convention.

Brennan already has a successful track record under his belt in defending these types of cases. He is perhaps best known for successfully defending the Novell corporation in retaining its ownership of the UNIX operating system name in 2012. Those who are watching the case, especially fans of the Salt Lake City convention, hope that a win for Salt Lake will set a legal precedent that will even the playing field for it and other comic book conventions across the country.

If the court sides with the much newer and smaller Salt Lake convention over the older and more recognized San Diego convention, San Diego’s power in the convention world will be limited to its own event. It will not have any type of power over other, similar conventions. This is exactly what the fans of Salt Lake and other small conventions want. A win for Salt Lake is a win for smaller conventions everywhere in the United States. With Brennan, they stand a good chance of getting it.

The lawsuit began on August 7, 2014, when San Diego Comic Con filed its initial complaint in the U.S. District Court in Southern California. In its complaint, San Diego is seeking an injunction against Salt Lake from calling itself the Salt Lake Comic Con, and is also seeking financial damages caused by Salt Lake’s use of the name to date. The organizers of the San Diego Comic Con allege that the Utah convention has been reaping the benefits of the hard work and good name of the San Diego convention by infringing upon its trademark in using a too similar name.

The Salt Lake convention organizers have publicly said the lawsuit is without merit. Meanwhile, they are working with their attorney to draft an official response to San Diego’s lawsuit which must be filed with the court by early September.

The organizers of the Salt Lake convention would like to resolve the dispute amicably. However, they are prepared to take it to court if necessary, and to fight it all the way to the highest court that will hear the case.

This goes to show how important it is to get good representation in business to business lawsuits. Salt Lake’s choice of attorney may make all the difference for them. If your company is facing a business to business lawsuit, the Coulter Law Group can make all the difference for you, too.

An internal or external business dispute can wreak havoc on individuals and companies alike. Fortunately, you have several legal options for coping with a dispute in the manner best suited to your particular challenge.

Amicable Resolutions

• Buyout – One partner in a business can buy out another’s ownership in a business when differences appear irreconcilable. As is the case with so many business decisions, the best time to deal with this contingency is before the need arises. Every business partnership should have their attorneys create a formal buy-sell agreement that covers the entire process in detail. HG Legal Sources notes that when one partner offers to buy the other partner out, the second partner may have the option to reverse the request and but the first partner out instead, a situation known as “I cut, you choose.”
• Sale – Selling the business may allow everyone involved to exit the business and see some profit at the same time. On the other hand, this process can generate plenty of fresh new disputes over how the proftis from such a sale should be divided. Selling a business can be a lengthy, challenging process. Think carefully about how long you want the resolution of your business to take; you may find that a less remunerative but faster process is more to everyone’s liking.
• Dissolution – Dissolving a business is a relatively fast and clean form of dispute resolution. As described by the U.S. Small Business Administration, the process generally takes just 90 days and involves the submission of a one-page form to the state. While the dissolving partners will need to make vendors, contractors, and partnering businesses aware of the dissolution, they are not held accountable for each other’s debts or liabilities in regard to the business.

Going to Court

If your dispute cannot be resolved through amicable means, it’s time to go to court. Legal battles require considerable legal expertise and experience. Lawyers.com points out, for instance, that he lawsuit must be brought in the appropriate court, for instance. The complainant must also ask for a specific judgment from the court, whether it involves a financial reward or an order to cease and desist from the offending behavior.

• Settlements – If the parties in the dispute would prefer to cut their courtroom expenses short or avoid going to judgment, a settlement behind closed doors can put an end to the court proceedings. The party bringing the lawsuit will agree to let the other party pay less damages, while the other party may concede to some, but not all, of the business changes originally requested.
• Judgments – If either you or the other party in the dispute refuse to settle out of court, there is no other option but to take the case all the way to judgment. In this scenario, you’ll need all the legal expertise at your disposal to make your case while weakening the opposition’s case. The judge will then pronounce a verdict or guilty or not guilty and award damages.

All of these options will likely call for legal assistance at some point or other. You can get your partnership off to a strong start by seeking this assistance as early as possible, especially in the structuring of the business and the creation of agreements that enable smoother operation and better communications. Contact Coulter Law Group to learn more.

In the course of doing business, it is inevitable that some businesses will fail. However, it is also incumbent on owners of small and medium businesses to study the causes of business failure in order to avoid them. Leaders in small- to medium-sized businesses are often the key factors in success. Therefore, it is also true that personal issues can lead to business failures. Business failures can often be avoided with conscientious study and proper analysis. Here is a list of common issues to watch for that lead to business failure unless corrected in time.

Poor Calculations

Sometimes no matter how hard we work, the supposition at the foundation of our business just does not pan out. This issue can occur when the competition is too large, unexpected circumstances change or products become obsolete. These types of problems can rarely be avoided unless the business can adapt in time.

Owners that are the Problem

Owners can be the problem in and of themselves. There are owners with personality defects that impede growth and success in a business. These issues can include inflated egos, poor communication skills, lack of confidence, lack of experience, avoidance of risk or even just plain stubbornness. If the owner cannot acknowledge and correct personal issues, the business may fail. Owners can ask third-party consultants to come in and assess their business to discover problems of this nature. Third-party consultants do not have an investment in the business, and can offer valuable insight without risking a job or partnership.

Personnel Issues

Besides the owners, other personnel are important to maintaining and growing a business. If those personal are experiencing personal issues such as depression, anger or divorce, they may not be able to give their full attention to their jobs. In small- to medium-sized businesses, personnel have a huge impact on the success of the business. Offering employees counseling or mental health days can help in these instances.

Legal Issues

It is unfortunate to know that sometimes businesses fail due to legal issues caused by employees or customers. Legal issues can drive a business into the ground if they are severe. If an employee is embezzling funds or committing fraud, the business can suffer a loss of reputation. Smaller ethics issues can also cause problems such as a lack of honesty when problems crop up or employees that are not willing to own up to mistakes. Other legal issues can occur when one or more employees are substance abusers or influenced by outside forces. It is crucial to offer proper training to company leadership to detect legal issues before they get too big.

Poor Accounting

Businesses cannot be run for long without proper accounting. It is too easy for funds to disappear or get misappropriated. Most small businesses need to budget carefully in order to keep cash flowing; therefore, poor accounting can cause a large problem in a short amount of time. Having accounting records reviewed by more than one person on a regular monthly or weekly basis can alleviate accounting problems.

Lack of Cash

As we have seen in the last several years, businesses are cyclical and so is the economy. All businesses need to carefully cultivate a cash cushion to help when times are tough. Financial advisors outside of the company structure can offer advice for accumulating cash resources.

Overexpansion

Overextending a business is one of the saddest reasons companies go under. When a business allows growth to happen too fast, it cannot always keep up with rising expenses. Business owners need to control business growth with an eye on problematic growing pains. Keeping an experienced financial advisor on retainer can help keep growth under control.

Operational Issues

Without proper guidance, inexperienced business owners may find themselves paying too much for rent, utilities or labor. Undefined roles and expectations can lead to important tasks slipping through the cracks. No business owner can be an expert in all parts of their business. They need to determine their own areas of expertise, and bring in experts to study how the business can become more efficient and profitable in other areas.

It seems like every day there’s some new salesman on television, promoting their system for getting rich quick. They tell you that anyone can start making serious money, as long as they follow their advice, learn their secrets, and pay them quite a bit of money in the process. Usually, these kind of schemes that promise wealth overnight are just scams and not something you want to get involved in. However, if you are interested in starting up your own business, there are definitely some things you should learn that can help your new business venture be successful. These are not secrets, just principles and guidelines, and it shouldn’t cost you an arm and a leg to learn them. Here are some things to remember if you’re trying to find help as you start your business.

Get Help from a Professional

First of all, make sure you get your business advice from a professional, and not just some guy you saw on the shopping network on television. A seasoned business professional would be a great person to learn from. Also, don’t forget to talk to a business lawyer. Sure, you may have a brilliant business idea. However, unless you understand the ins and outs of business law, or at least have a lawyer on your side that does, you are bound to get overwhelmed by the legal side of starting a business.

Take a Minute to Learn about the Law

If you take the time to sit down with a business lawyer, he or she can walk you through the basics of laws pertaining to your new business and help you feel more comfortable as you begin your new venture. For example, if you are thinking of trying to sell this great product you’ve designed, there will be patents, forms, and many other legal documents you need to file before you can start selling the product. On the other hand, if you’re starting up a restaurant, it will be really beneficial to gain a basic understanding of your state’s health code, hiring practices, and other laws pertaining to the food industry. Just a little bit of time learning about the law before you dive in to your new business can really pay off in the end.

Plan, Plan, Plan

There are some times in life when it can be fun to be spontaneous, to wake up one morning and decide that today is the day you do that crazy thing you’ve always dreamed of doing. Starting a business is not one of those times. If you are thinking of starting a new business, you must take the time to plan. What do you need to plan? You will need to figure out your financial backing, how you are going to make a profit, how long it will take before your business brings in a profit, what your short and long term goals are, your marketing strategy, and more. Taking the time to plan this all out and get any professional advice you might need will contribute to the success of your business. Try to be patient and give yourself the necessary time to sort things out before you dive in to your exciting new venture.

In this economy, it seems like more people than ever before are becoming landlords, whether that was in their original plans or not. If you’re looking to move, but you can’t sell your home without losing money, renting it out is a great option. In an effort to save money, many people are opting to manage their own properties instead of hiring a management company. If you find yourself renting out property, whether a house, a condo, or an apartment, just make sure that you draft a strong lease agreement that will protect both your rights and the rights of your tenant. This agreement needs to be clear, well organized, and detailed. Here are five mistakes to avoid when drafting your own lease agreement.

1. Relying on Verbal Agreements

As much as you like your new tenants and hope that they will pay their bills on time and take good care of your property, you simply cannot afford to make the mistake of only making verbal agreements. Discussing your terms and shaking on it isn’t going to cut it. To protect yourself and your tenant, you must draft a legally binding written agreement, signed by both parties.

2. Writing a Vague Agreement

If ever there was a time for precision and detail, this is it. Don’t just throw together some sloppy agreement and have your tenant sign at the bottom. You need to list the property address, the length of the lease including the specific dates of that time frame, any specific regulations regarding pets on the premises, any damage already present in the home, and other details like eviction policies and late payment fees. The more specific you are, the easier it will be to sort through any problems that may come up in the future.

3. Forgoing a Background Check

As much as you might like to simply trust everyone that applies to rent your property, you must conduct a background check prior to accepting an application. Yes, it might cost a little bit to have this done. However, this information, including credit history and criminal background, is vital. You are entrusting someone with your property. It only makes sense that you need to do your homework in order to ensure that you find a trustworthy tenant.

4. Forgoing an Initial Inspection

Although it will take a bit of your time, make sure that you conduct an initial inspection of your property with your tenant. During this inspection, make a written list noting any damage to the property including stains in carpeting, nail holes in the walls, and other issues related to the structure and cosmetic appearance of the property. Once the list is complete, both parties should sign and date the document. This will come in handy down the road when your tenant is preparing to move. At this point, you can walk through the property again and it will be clear what damage occurred after the tenant took up residence in the unit. This will allow you to receive proper payment for any repairs you need to make.

5. Forgetting to Collect a Deposit

Finally, it is imperative that you collect a deposit. You can include this stipulation in your property listing and you should also detail the amount of the deposit and the parameters for refunding the deposit in your lease agreement. You may want to collect the equivalent of one month’s rent at the beginning of the lease and stipulate that a certain percentage of the deposit will be refunded when the lease is concluded. It is wise to make a portion of the deposit non-refundable to cover the cost of having the property cleaned in between tenants. You will also want to state in your lease that the cost of repairs for any damage caused by the tenant will come out of the deposit. A deposit adds an extra level of security for you as a landlord and gives your tenant added incentive to pay their rent on time and take care of your property.

Trying to choose the right business structure to achieve your goals may seem like an overwhelming process.  In making your selection, it’s important to weigh the legal and tax ramifications of each to find which best fits you.  Below is a breakdown of the most common business structures to help make your decision a little easier:

Limited Partnership

A Limited Partnership (“LP”) is comprised of one or more general partners and one or more limited partners.  LPs are creatures of statute – you must file a form with the state to bring one into being.  A LP exists apart from its creators as a distinct legal entity.  This means it can sue, be sued, and own property on its own.  General partners are in charge of daily operations and are still personally liable for the company’s obligations and debts.  The limited partners invest capital in the company and share in the profits, but take no part in the daily operations.  A LP protects limited partners from personal liability; liability is restricted to the amount of capital the limited partner has decided to invest.  LPs distribute funds among different shareholders as “dividends”.

Benefits of a Limited Partnership:

• Tax benefits are a big perk for this particular business structure. A LP pays no federal income taxes; instead, partners report their share of the profits and losses on their individual federal income tax returns.
• The LP files an information return with the IRS noting each partner’s share of the year’s profit or loss.  LPs also provide numerous tax deductions to employees.
• Even a one-person LP can take health insurance and entertainment deductions, and the general partner is allowed to deduct pension plan and 401(k) expenses.
• LPs also provide attractive liability protection for limited partners.  When a limited partner is sued, the assets inside of the LP are protected from seizure.
• It is also easier to attract outside financing, as investors are easier to come by when they can be shielded by becoming a limited partner.  Forming a LP also provides an initial legal framework while promoting credibility and anonymity.

Detriments of a Limited Partnership:

• In LPs, the general partner(s) take on the dirty details of business management and assume personal liability for the obligations and debts of the company.
• As a separate legal entity, there is some paperwork required for start-up.
• There are also corporate formalities that must be adhered to throughout the life of the LP. LPs must also plan for their duration — otherwise the partnership dissolves when a general partner leaves, dies, or succumbs to bankruptcy.

Examples:

TruGreen Salt Lake

2435 West Custer Road

Salt Lake City, UT

www.trugreen.com/saltlake

866-319-4936

Limited Liability Company

A Limited Liability Company (“LLC”) is a business structure that can vary from state to state.  In Utah, a LLC is created by completing and filing “Articles of Organization” with the Utah Secretary of State. A LLC allows for an unlimited number of owners, or “members,” and “managing members”, all of which are protected by limited liability. The managing member is usually the mouth piece or nominal head.  As an LLC member, you can contribute capital and assets to the LLC or loan the LLC money.  You can then obtain repayment for your loan (plus interest), a distribution of profit, or a guaranteed payment from the LLC. “Guaranteed payment” is considered members’ earned income, qualifying them for the benefits of tax-favored “fringe benefits.”  A Utah LLC is a “pass through” tax entity. This means that the company’s profits and losses are passed on to the owners who must report it on their personal tax filings (IRS form 1040); LLCs do not pay taxes on a company level.  The LLC files a form 1065, listing each member’s taxable profit on IRS form k-1.  Members of an LLC can elect to have their LLC taxed as either a C corporation, or, by timely filing the 2553 form, as an S Corporation.

Benefits of an LLC:

• An LLC allows for an unlimited number of members and provides for the special allocation of profits. This means members benefit from receiving profits (and writing off losses) in excess of their individual ownership percentage.
• As a member, you will also enjoy limited liability, so your personal assets cannot be used to satisfy the LLC’s debts.
• The managing members are also considered “active” managers of the business, so their share of net profit is earned income – qualifying them for tax-favored “fringe benefit” treatment.
• There can also be tremendous benefit because of the flexibility by which the LLC can be taxed.
• Finally, if any member of the LLC dies, the LLC can still survive — subject to a unanimous vote by all surviving members to continue the business.

Detriments of an LLC:

• Each LLC member’s pro-rata share of profits is taxable income, regardless of whether or not the profits are actually distributed to him/her.
• The managing member’s share of the bottom-line profit is considered earned income and subject to self-employment tax.
• A member is considered an “inactive owner”, so their share of bottom-line profit is not considered earned income and cannot be used to obtain tax-favored “fringe benefit” treatment.

Example:

REFS-The Real Estate and Foreclosure Specialists

635 W. 5300 S. Suite 303

Murray, UT

http://www.refs-utah.com/

801-747-CASH

Corporation

You create a corporation (a.k.a. C Corporation) by filing documents (“Articles of Incorporation”) with the state.  A corporation is a legal entity apart from its owners (shareholders).  Corporations can establish credit, acquire assets, and enter into contractual engagements. Potential liabilities are incurred by the corporation, not by the owners themselves.  This means that the personal assets of officers and shareholders are usually safe from the corporation’s creditors.  However, if shareholders fail to follow corporate formalities, a court may “pierce the corporate veil”, allowing creditors access to personal property. Owners of corporations don’t pay tax on the corporation’s earnings unless they actually receive the money as dividends or as compensation for services (e.g. salaries and bonuses).  The corporation itself pays taxes on all profits left in the business.

Benefits of a Corporation:

• First and foremost, there is limited liability for shareholders.  This perk attracts investors, as an investor’s liability and exposure is limited to the amount of his or her investment – less risk! This makes raising capital for your corporation less challenging.
• Forming a corporation also increases the credibility of your company, and provides an opportunity for prestige among business and corporate officers.
• Finally, corporations have several tax, compensation and wage benefits.

Detriments of a Corporation:

• You have to observe corporate formalities.  These are the basic operating rules that are necessary to ensure that the corporation maintains its status as a separate legal entity.  Some of the formalities include appointing officer positions, electing a board of directors, proper documentation of the corporation’s activity, annual meetings, etc.
• Reaching corporate status is not a monumental task, but one must be sure to ensure the process is done correctly.
• Another downfall is that a corporation goes through double taxation.  A traditional corporation must pay tax on all corporate income, followed by individual shareholders paying income tax again on whatever distributions they received. One way to avoid the double taxation dilemma is to establish the corporation as a “pass through” entity.  This way all corporate profits pass through to the individual shareholders, so they alone will be responsible for the tax burden.  When a corporation elects to be treated this way, it becomes known as an “S” Corporation, which is discussed below.

Examples:

Larry H. Miller Group of Companies

Several Locations throughout Utah

www.lhm.com

801-563-4100

Nonprofit Corporation

Nonprofit organizations are formed in the state where they intend to do business. Unlike a standard corporation, nonprofits do not conduct activities for the financial gain of shareholders.  Preventing the distribution of profits to members/shareholders is what distinguishes the nonprofit from a commercial enterprise; yet nonprofits still provide asset protection and limited liability.  A nonprofit corporation is not forbidden from making a profit — but if it does, that profit can only be used to further the overarching goal or mission of the organization.  Nonprofits can also trade at a profit and accept, hold and disburse money; but all profit and things of value are to be used to further the nonprofit’s quest.   Nonprofits are organized in many different ways: charities, service organizations, trusts, hospitals, universities, foundations, endowments and cooperatives can all operate as nonprofits.  Nonprofits can have “members”, although many do not.  They may have employees, and can compensate their directors reasonably, but only if compensation is documented ever-so-carefully.

Benefits of a Nonprofit:

• Nonprofit corporations generally have tax exempt status.
• Once the recognized nonprofit entity has been formed at the state level, the nonprofit corporation can seek tax exempt status by applying to the IRS.  The IRS, after reviewing the application to ensure the purpose of the organization meets certain conditions, will issue an authorization letter granting it tax exempt status for income tax purposes. The exemption does not apply to other federal taxes such as employment taxes. Charitable contributions made to nonprofit organizations by individuals and corporations are also deductible.

Detriments of a Nonprofit:

• The reliability by which a non-profit organization can hire and retain staff, sustain facilities, or create programs is an ongoing problem.  Because nonprofits generally rely on external funding, they do not have much say over their precious sources of revenue.  This leads to reliance on government funds such as grants, contracts, vouchers or tax credits to support their operations.

Example:

IHC (Intermountain Health Care)

36 S State Street

Salt Lake City, UT

http://intermountainhealthcare.org/

801-442-2000

Partnership

A partnership consists of more than one business owner; it comes into being whenever business takes place between parties, making them “partners”.  A “partner” does not need to be an individual.  Partners can be corporations, trusts, or other partnerships.  Partners take on profits, losses and liabilities together, and will generally create a written partnership agreement that clarifies their relationship.  It is important to keep in mind that a written agreement is not required by the law to find that a partnership exists — actions alone can suffice.   As for tax purposes, a partnership is considered a “pass-through” entity because taxes pass through to the owners on their personal tax returns. Each owner must report his or her percentage share of income on the individual form 1040 for federal income taxes.  Partners are not considered employees of the partnership; they are treated as self-employed, so each partner will be responsible for self-employment tax.  If a partnership has employees, the business must pay employment taxes.  This includes withholding and reporting federal and state income taxes, paying and reporting social security and Medicare taxes, worker’s compensation taxes, and unemployment taxes.  If the partnership owns real property, property taxes will also be required.  Finally, partnerships are required to pay state sales taxes and excise taxes.

Benefits of a Partnership:

• A partnership is easy to start and allows business profits and losses to be reported on the individual tax returns of each owner.
• Start-up paperwork and legal necessities are also at a minimum, as most states only encourage the drafting of a partnership agreement.  Despite this, it is important to look into the required licenses and certificates when forming a partnership.
• Finally, in a partnership you can capitalize on the managerial and financial strengths of each individual partner.

Detriments of a Partnership:

• Partners have unlimited personal liability for the debts and obligations of the company.
• Additionally, each partner can bind the company to outside obligations without the approval or permission of the other partners. Therefore, one partner’s decision can leave every other partner’s personal property vulnerable should a lawsuit result in an unfavorable outcome.  This divided authority can also cause internal disputes.
• Finally, without advanced planning, the partnership can fall apart very quickly; the death of a partner terminates the business arrangement.

Example:

Legal firms, e.g. “The Law Offices of Smith, Jones and Daniels”

S Corporation

Congress has clarified that all corporations are divided into two groups: S Corporations that fall under IRS revenue code subchapter S; and C Corporations, which encompass all other corporations. Your first step in creating an S Corporation (“S Corp”) is to form a traditional corporation.  Next, you must file a special form (form 2553) with the IRS, along with any other local state documentation.  S Corp status is effective for a tax year if form 2553 is filed: (a) any time during the previous tax year, or (b) by the 15^th day of the 3^rdmonth of the tax year to which the election is to apply.  An S Corp is similar to a traditional corporation with partnership-like traits.  Utah’s S Corps are for those who desire the limited liability and formal structure of a corporation, but can’t give up pass-through taxation.  Your business must meet S Corp qualifications and all shareholders must agree to S Corp status. An S Corp is generally treated like a partnership for federal income tax purposes. It files an “information” tax return to report its income and expenses, and is not separately taxed as a traditional corporation.  Income and expenses of an S Corp “flow through” to the shareholders in proportion to their share holdings, and profits are taxed to the shareholders at their individual tax rates.

Benefits of an S Corporation:

• One of the primary advantages of being treated as an S Corp is the pass-through taxation described above.  There is only one tax at the individual shareholder level.
• This is in contrast to a corporation where taxation occurs first on the company’s income level, then again at the individual owners’ distributions out of that income. Shareholders therefore enjoy “the best of both worlds” with an S Corp: they have the pass-through taxation benefits of a simple partnership, but the limited liability and asset protection of a corporation.

Detriments of an S Corporation:

• With an S Corp you cannot have an unlimited number of members – shareholders are restricted to a designated number.  In Utah the maximum is 35 shareholders.
• There is also a possibility that the IRS may look passed your subchapter S status for tax purposes if there is only one shareholder.  This is more likely to occur when formalities are not adhered to – so remember, always stick to corporate formalities, they are worth the trouble!
• Finally, you are restricted to just one class of stock with an S Corp.

Running a business is not easy.  It requires drive, discipline and the ability to identify and provide a product or service that people truly need.  Utah business owners can take steps to avoid complicated legal problems and ensure future peace of mind by avoiding these five common mistakes:

 1.     Undercapitalizing

Corporation law has paved the way for individuals to invest their savings in large, risky businesses while enjoying limited liability and avoiding management responsibilities. Most who jump through the hoops to organize a corporation or limited liability company (LLC) wrongly assume that this protection is absolute.

Certain circumstances may lead a court to decide that it would be unjust and unreasonable to recognize the limited liability generally granted by a corporation or LLC.  When this occurs, creditors can satisfy their judgments against a corporation or LLC through the owner’s personal assets.  Holding shareholders and members personally responsible for the debts of the business entity is a process known as “piercing the corporate veil”.

One of the more common mistakes leading a court to find personal liability is undercapitalization.  A creditor may be able to attach your personal assets to satisfy the corporation’s debt if your company does not have the assets necessary to pay a creditor’s claims, the financial insufficiency existed at the time the debt was incurred, and the insufficiency was so severe that it constituted gross undercapitalization.

 2.     Co-mingling Funds and Ignoring Formalities

Another easily avoidable instance where the court may pierce the corporate veil is when a shareholder has used corporate assets as if they were his own.  The defining feature of a corporation is its independence from the people who create it.  If you are ignoring the separateness of your business entity, why should the rest of the world?  For this reason, it is important to keep personal funds in your own pocket, keep business funds separate, and make sure that you’ve satisfied all the requisite formalities of your particular business entity.

3.     Hiring an Inexperienced Accountant  

In an attempt to save money or time, small business owners may try to take on accounting themselves.  They may also turn to Aunt Mildred or an old high school football buddy that took an accounting class decades ago.  This is a bad idea.  It is important to hand over important fiscal responsibilities to a trained accountant, CPA, or tax attorney.  Look for an accountant that has had other small business clients and is knowledgeable about business tax preparation.

4.     Inadequately Protecting Intellectual Property or Infringing on the Rights of Others

Many businesses may not think that their logo, product or services warrant legal protection.  It is important to make sure that something as simple as your company name isn’t trademarked.  Clearing up issues regarding trademarks, patents and copyrights ahead of time is important; as it can become more difficult to protect them down the road if a third-party starts doing something similar.

5.     Drafting Faulty Contracts

Failing to find a skilled contract attorney can lead to a transaction blunder that costs big money.  Business owners may enter into a contract without having a clear understanding of their rights and obligations, and breaching a contract may lead to mediation or litigation that is stressful and time consuming.  Cutting corners by finding online contract forms can also be unwise.  Contract forms may be out of date or lack important language.  For these reasons, it is important to hire a lawyer to draw up contracts, especially if these contracts make up the foundation of your business.