Which Business Structure Should I Choose?

Starting a new business is an exciting journey filled with opportunities, challenges, and decisions. One of the most critical decisions you'll face as a founder is choosing the right legal structure for your startup. As business owners, the legal structure you select will have far-reaching implications for your company's taxes, liability, and governance. In this comprehensive guide, we'll explore the different business legal structures that founders of startups need to consider and help you make an informed decision.

If you're having issues you can always seek out legal advice to have a professional help guide you towards which type of business structure best suits your needs.

Why Does Your Legal Structure Matter?

The legal structure of your startup impacts various aspects of your business, including:

1. Liability

Your level of personal liability for business debts and lawsuits can be significantly affected by your choice of legal structure. Some structures provide more protection than others.

2. Taxes

The way your business is taxed can influence your overall profitability. Different structures offer distinct tax benefits and requirements.

3. Control and Governance

The structure you choose can determine how your company is managed and who makes key decisions. This can be vital for maintaining control and attracting investors.

4. Funding Opportunities

Certain legal structures might be more attractive to investors or easier to sell or transfer. Your choice can impact your ability to secure funding and grow your business.

5. Administrative Requirements

Each legal structure comes with varying degrees of complexity and compliance requirements, which can affect the time and resources you need to allocate to maintain your business.

Now, let's dive into the different legal structures that startup founders should consider:

1. Sole Proprietorship

A sole proprietorship is the simplest business structure and most common. It's typically chosen by single founders who operate their businesses under their names or a trade name.

Advantages:

• Easy Setup: You can start a sole proprietorship with minimal formalities.
• Direct Control: You have complete control over your business and its decision-making.
• Tax Efficiency: Income and expenses are reported on your personal tax return. The business owner and the business are considered the same legal entity. As a result, the owner reports all business income and losses on their personal tax return.

Disadvantages:

• Unlimited Liability: The legal liability here are significant. You are personally responsible for all business debts and liabilities (business losses).
• Limited Growth Potential: Sole proprietorships may face challenges in attracting investors and securing funding.
• Limited Tax Benefits: You may miss out on certain tax deductions and credits available to other structures. As a sole proprietor you're considered self-employed for tax purposes. This means you're required to pay the self-employment tax, which covers both the Social Security and Medicare portions of FICA taxes.

A sole proprietorship is an excellent choice for freelancers, consultants, or small businesses with minimal risk and a sole owner. However, if you're wanting a completely separate entity, other structures should be considered.

Sole proprietorships lack distinct legal separation from their owners. This means that the assets and liabilities of the business are intermingled with the owner's personal finances, potentially exposing the owner to personal liability for the business's debts and responsibilities. Sole proprietors have the option to register a trade name, but they may encounter challenges when attempting to secure financing due to restrictions on stock issuance and reluctance from banks to extend loans to this business structure.

2. Partnership

A partnership business structure involves two or more individuals or entities coming together to operate a business. There are two primary types of partnerships: general partnerships and limited partnerships.

General Partnership:

Advantages:

• Ease of Formation: Similar to sole proprietorships, general partnerships are relatively easy to set up.
• Shared Responsibilities: Partners can pool their resources, skills, and networks.
• Tax Efficiency: Profits and losses pass through to partners' personal income tax return.

Disadvantages:

• Unlimited Liability: Like sole proprietors, general partners have personal liability for business debts and legal obligations.
• Potential for Conflict: Differences in decision-making, profit-sharing, and responsibilities can lead to disputes.
• Limited Funding Sources: Attracting outside investors can be challenging.

Limited Partnership (LP):

Advantages:

• Limited Liability: Limited partners have liability restricted to their investments, while general partners assume more significant responsibility.
• Investor Attraction: Attractive to passive investors who want to avoid direct involvement in the business.
• Tax Efficiency: Profits and losses pass through to partners' personal income taxes.

Disadvantages:

• Complex Formation: Creating an LP involves more paperwork and legal formalities.
• Limited Control: General partners maintain more control but also have unlimited liability.
• Potential for Disputes: Conflicts between general and limited partners can arise.

Partnerships can be a suitable choice when multiple individuals or entities want to collaborate on a business venture. However, they require careful consideration and well-drafted partnership agreements to address potential disputes and liabilities.

Unlike limited partnerships, limited liability partnerships (LLPs) offer liability protection to all owners, ensuring that each partner is shielded from the partnership's debts and is not held accountable for the actions of their fellow partners.

Partnerships are a suitable option for enterprises with multiple proprietors, professional associations (such as legal firms), and groups seeking to explore their business concept before establishing a more structured enterprise.

3. Limited Liability Company (LLC)

The Limited Liability Company (LLC) is a popular choice for startups because it combines the simplicity of a partnership with the liability protection of a corporation.

Advantages:

• Limited Liability: In the majority of cases, LLCs provide a shield against personal liability. This means that your personal assets, such as your home, vehicle, and savings, typically remain safeguarded even if your LLC encounters financial difficulties or legal disputes.
• Tax Flexibility: LLCs can choose to be taxed as a pass-through entity (like a partnership) or as a corporation.
• Simplified Governance: Fewer formalities and less administrative burden than corporations.
• Attractive to Investors: LLCs can have a more flexible ownership structure that appeals to various types of investors.

Disadvantages:

• Complexity in Some States: Formation and reporting requirements can vary by state.
• Limited Lifespan: Some states have specific rules about the duration of an LLC.
• Self-Employment Taxes: Members may be subject to self-employment taxes on their share of profits.

LLCs are a versatile choice for startups, offering a balance between liability protection and operational flexibility. They are often favored by small to mid-sized businesses.

4. Corporation

A corporation is a distinct legal entity separate from its owners, offering the highest level of personal liability protection.

Advantages:

• Limited Liability: Shareholders are generally not personally responsible for corporate debts. While corporations provide the most robust personal liability protection to their owners, the initial expenses associated with forming a corporation are higher compared to other business structures. In addition, corporations demand more comprehensive record-keeping, operational procedures, and reporting requirements.
• Investor Attraction: Easier to attract equity investors through the issuance of shares.
• Perpetual Existence: Corporations can continue to exist beyond the lifespan of their founders.
• Tax Planning Opportunities: Corporations have more options for tax planning and can retain earnings for growth. There may be state-level tax exemptions or preferential tax treatment available for certain types of corporations, such as those engaged in manufacturing, agriculture, or specific industries.

Disadvantages:

• Complex Formation: Setting up a corporation involves significant paperwork and compliance.
• Double Taxation: C Corporations can face double taxation, where corporate profits are taxed at the entity level and again when shareholders receive dividends.
• Strict Governance: Corporations are subject to strict regulatory and governance requirements.
• Administrative Burden: Annual reports, meetings, and documentation are necessary.

Corporations are suitable for startups with growth ambitions, plans to attract investors, and the willingness to navigate complex regulations. There are two primary types of corporations: C Corporations and S Corporations.

C Corporation:

• No restrictions on the number of shareholders.
• Offers various classes of stock.
• Ideal for large or publicly traded companies.
• C Corporations are also known for facing double taxation, where profits or corporate taxes need to be filed, and then shareholders are taxed on any dividends received

S Corporation:

• Must meet specific requirements, such as having a limited number of shareholders.
• Profits and losses pass through to shareholders' personal tax returns, avoiding double taxation. It's crucial to maintain a clear separation between personal and business assets. Commingling these assets can jeopardize the liability protection that the S Corp structure provides. This entails having separate bank accounts, financial records, and contracts for the business. 
• Suited for smaller companies seeking liability protection without the complexities of a C Corporation.

Closed Corporation:

• Limited number of shareholders, often a small group of individuals, family members, or a single family
• Shares are not publicly traded, and their transferability is often restricted 
• Typically privately owned and managed, they face fewer regulatory and reporting requirements compared to public corporations
• Often focused on retaining family ownership and control over the business

5. Cooperative (Co-op)

A cooperative is a unique legal structure where members collectively own and operate the business, sharing in decision-making and profits.

Advantages:

• Democratic Control: Members have a say in business decisions, typically on a one-member, one-vote basis.
• Profit-Sharing: Profits are distributed among members according to their participation or use of the cooperative's services.
• Tax Benefits: Cooperatives may qualify for specific tax advantages, depending on the nature of their business.

Disadvantages:

• Limited Capital: Raising funds and attracting investors can be challenging.
• Complex Decision-Making: Consensus-based decision-making can slow down the process.
• Membership and Legal Requirements: There may be specific legal and regulatory requirements for cooperatives that can be more complex to navigate.

Cooperatives are a compelling choice for businesses that emphasize collective ownership, decision-making, and community engagement. They are often seen in industries like agriculture, retail, and housing.

6. Nonprofit Organization

A nonprofit organization is a legal structure primarily dedicated to a mission or purpose rather than generating profits for shareholders.

Advantages:

• Tax-Exempt Status: Nonprofits can receive tax benefits and are eligible for tax-deductible donations.
• Mission-Driven: Ideal for businesses with a strong social or community focus.
• Eligibility for Grants: Nonprofits can access grants and funding that may not be available to for-profit entities.

Disadvantages:

• Limited Revenue Generation: Nonprofits are restricted in their ability to generate income, and any profits must be reinvested in the organization's mission.
• Complex Compliance: Nonprofits are subject to stringent regulations to maintain their tax-exempt status.
• Limited Control: Nonprofits often require a board of directors and have limitations on profit distribution.

Nonprofit Corporations are suited for organizations with a strong social or environmental mission that relies on donations, grants, and community support to achieve its goals.

7. Benefit Corporation (B Corp)

A Benefit Corporation, or B Corp, is a relatively new legal structure that combines for-profit goals with a commitment to social and environmental responsibility.

Advantages:

• Dual Mission: B Corps are legally obligated to pursue both profit and social or environmental goals.
• Accountability: B Corps are required to report on their social and environmental performance.
• Attracting Impact Investors: Attractive to investors who prioritize social responsibility and impact.

Disadvantages:

• Complex Reporting: Maintaining transparency and accountability can require significant administrative effort.
• Limited Investment Options: Not all investors are interested in impact-driven businesses.

Benefit Corporations are a good choice for startups with a strong commitment to social or environmental causes and a desire to balance profit-making with positive social impact.

8. Professional Corporation (PC)

A Professional Corporation, or PC, is a structure typically chosen by professionals like doctors, lawyers, and accountants to provide services while limiting personal liability.

Advantages:

• Limited Liability: Members are protected from personal liability for malpractice or professional negligence claims.
• Professional Focus: Designed for licensed professionals who must comply with industry-specific regulations.
• Tax Benefits: Can enjoy certain tax advantages while maintaining personal asset protection.

Disadvantages:

• Industry-Specific Rules: Professionals may face stringent industry-specific rules and regulations.
• Ownership Restrictions: Typically, only licensed professionals in the field can become shareholders.

PCs are a specialized structure that provides personal liability protection for professionals who need it.

How to Choose the Right Legal Structure

As a business owner, the first task of getting things officially set up is choosing the type of business entity you'll be operating under. To make an informed decision, consider the following steps:

1. Assess Your Goals and Priorities

What are your short-term and long-term goals for your business? Are you focused on growth, maintaining control, attracting investors, or emphasizing social responsibility? Understanding your priorities will help guide your decision. Depending on the deal size of the business you'd want to see come to fruition, certain legal entities are more attractive than others. Lifestyle types of businesses with a single owner might prefer the ease of sole proprietorships or partnership models.

Startups that will need external financing and investment will need to look at incorporating - an important point here is incorporating in Delaware specifically. There are tax advantages, privacy and flexibility in corporate structure. 

2. Evaluate Liability and Risk

Consider the potential risks and liabilities associated with your business. If personal liability protection is crucial, you might lean towards structures like LLCs or corporations. If you're comfortable assuming full responsibility, a sole proprietorship or partnership might suffice.

3. Tax Implications

Understand the tax consequences of your choice. Consult with a tax advisor to determine which structure aligns with your financial goals and tax planning strategies. In several business structures, personal income is liable for taxes (known as 'pass-through' entities because the business's profits and losses are passed through to the owners' individual tax returns). 

4. Funding Needs

If you plan to seek external funding or investment, some legal structures may be more appealing to investors. Corporations and LLCs often provide more flexibility in this regard. For sole proprietorships and general partnerships whereby the exposure of the owners' personal assets to business debts is higher, lenders may be more cautious when lending.

5. Regulatory Compliance

Be aware of the administrative and compliance requirements associated with each legal structure. Some structures involve more paperwork and reporting than others.

6. Seek Legal and Financial Advice

It's essential to consult with professionals, including attorneys and accountants, who can provide guidance based on your specific circumstances. They can help you navigate the legal intricacies and tax implications of your chosen structure.

7. Prepare Proper Documentation

Once you've chosen a legal structure, ensure you complete all the necessary paperwork and comply with state and federal requirements. This typically involves filing articles of incorporation or organization, creating bylaws or operating agreements, and securing any required licenses or permits.

You'll need to consider and keep up to date with eligibility requirements as well as any potential ongoing requirements to maintain the legal status of the company.

8. Review and Adjust as Needed

As your startup grows and evolves, your legal structure may need to change. Periodically review your choice to ensure it still aligns with your goals and circumstances. The type of structure you decide on can have a huge impact on the business operations; how business expenses and business profit are recorded and kept track of, what legal protections do you the owner have?

In conclusion, choosing the right legal structure for your startup is a critical decision that can significantly impact your business's success. The decision should be based on your unique goals, risk tolerance, tax considerations, and long-term vision. Be sure to seek professional advice, understand the implications of each structure, and make an informed choice that sets your startup on the path to success. Remember, flexibility in adjusting your structure can be a valuable asset as your business grows and changes.