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.

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.