Ahhhh… what a cute picture. These are not business owners. They might be business sellers. Sarcastically, business ownership does not mean you own a business; it means a business owns you, but that can be a good thing!
Pursuing a passion and making it into a business is a great way of life, but certain foundational steps need to be in place for long-term success. Liability, self-employment taxes, retirement savings and solo 401k plans, accountable plans, exit strategies, business valuations, etc. are all considerations that many small business owners neglect. LLC? C-Corp? S Corp Formation? Perhaps a Limited Partnership? We can help.
The power of advertising, the ease and the hype have created this fervor surrounding the limited liability company. Do you know what LLC really stands for? That’s right.. Lawyer’s Likely Choice. We like to poke fun at attorneys- creating an LLC is an easy way to get your small business off the ground. While there are significant benefits there are many things to consider. Husband and wife? Exit plans? Death and divorce clauses with non-family partners? Self-employment taxes? Business valuation? Rentals? There are several things to consider when drafting an ironclad Operating Agreement. Read our KB article here-
Entity Formations and Considerations Podcast
Quick myth buster- LLCs do NOT automagically protect you from all lawsuits- limited liability does not mean tort liability. Huge misconception! Do you really think the world would go ’round if your errors and omissions could be wiped clean through an LLC? Nope. Turn the tables for a moment. What if you were on the receiving end of a car accident and the bozo waives some formation documents and says, “You can’t sue me. This is a business car!” We doubt our justice system and our demands for equity would allow that. Please read our KB articles on the ins and outs of LLCs and S Corps at-
LLC Formation Fees
WCG (formerly Watson CPA Group) can do all the filings with the Secretary of State (for any state), and our fee is $425 plus the state filing fees. We can file your paperwork in all 50 states plus the District of Columbia. Some states are fast, some still require paper submissions (such as Pennsylvania). Some are slow for no reason, like California. You might also have to file an Initial Report. States such as Nevada and California have an Initial Report Filing requirement and our fee to prepare this filing is $100 plus the state filing fee.
We’ll also obtain your Employer Identification Number (EIN) from the IRS, create an Operating Agreement (for single member LLCs only) and draft an Accountable Plan for expense reimbursements (including the corporate resolution should one be needed). Three documents (Articles of Organization or Certificate of Formation, EIN and Operating Agreement) are required by most banks for a business checking account. The Patriotic Act, Bank Security Act and Homeland Security want to clamp down on illegitimate business accounts and financial holdings. This fee also includes your S Corp election should you need it. Please click on the button below to get going!Yes, LegalZoom might appear cheaper. But after you add on all the bells and whistles, our fee is very reasonable. And, you get excellent business consultation by using WCG (formerly Watson CPA Group). Way too often people run out and do the LegalZoom thing, and then need to us to unravel a bad decision and put things back together. That gets expensive really quickly. So, forming a business is not the kind of thing to be stingy on- get solid answers and solid advice from a trusted business consultation and tax preparation firm. We’ve unraveled enough LegalZoom filings to choke a small horse. Do you know what it takes to choke a small horse? A lot.
On the other hand, we see some business owners spending $1,500 for an attorney to create an LLC. Unnecessary! Sure, the attorney needs to eat but let’s be smart with our money. We create business entities all the time. Having said, we are the first to punt on a complicated situation. A trust owning an LLC? A multi-member LLC which requires a robust Operating Agreement? An LLC that deals with alcohol, tobacco, firearms or marijuana? There are a handful of situations where we recommend using an experienced attorney but creating an LLC for your new Amazon reseller business is not one of them.
Don’t forget that WCG (formerly Watson CPA Group) also consults with you on how to account for your business transactions, what tax savings strategies to deploy (forget cars, cars usually stink as tax havens), what tax deferral plans to implement such as self employed 401k plans or profit sharing plans, and basic business operations. Small business consultation is what we do, and we do it well by catering to your unique needs. You are not special, but you are unique.
S Corp Formation
As mentioned elsewhere, an S corporation does not exist as an entity. Some other underlying entity must exist, such as an LLC, partnership or corporation, that then chooses to be taxed as an S Corp. People say “I have an S Corp” all the time… and there is nothing wrong with that, but technically you have some other recognized entity being taxed as an S corporation.
Unless you are guaranteed to make a bunch of money, we do not immediately file Form 2553 (S Corp election) to perfect the S Corp formation. Since we can always do a late S Corp election back to the inception of the entity, we commonly do a wait and see. There is no sense lighting all the fires that go along with an S corporation unless you are experiencing net profits. If you lose money your first year or two, an S Corp does nothing except add to your tax preparation bill.Another error we often see is business owners adding their spouse; there are cases where this makes sense and in community property states it doesn’t matter, but if you add your spouse you instantly become a partnership requiring a partnership tax return (Form 1065). Again, an unnecessary addition to your tax preparation fee.
But there are exceptions! S Corp tax returns (Form 1120S) and partnership tax returns (Form 1065) enjoy a substantially lower audit rate (0.4% versus 2-3%, 2017 data). That might be worth something to you. And… While the days of simply adding your female spouse in the hope of being labeled a minority owned business are few and far between (governments now want certifications), there are times where adding your spouse makes a bunch of sense. Here is some reading material-
Are you considering going into business with a partner other than your wife? Wait! You need to consider some things. What happens if your partner dies? Are you now in business with your partner’s widow… you know, the crazy one that you could never stand in the first place? Or his kids? You need to strongly consider an Operating Agreement that details death and divorce clauses, corporate waste, and first rights of refusal. You must have language that allows the remaining partners or members to buy back the interest but how will the business be valued? What is the dispute process?
Please keep in mind that with an S Corp formation, you are still operating under the auspice of the underlying entity’s rules. In most cases this is an LLC. So, your S Corp might truly be an LLC taxed as an S corporation such that an Operating Agreement (as opposed to By Laws) is the governing and controlling document.
We can work with your attorney to draft this correctly. Here is our KB article on things to consider with Operating Agreements-
LLC Liability Protection (Fallacy)
Can I be sued if I own an LLC? Yes. And you can easily lose on a personal level. And while consultation with an experienced attorney is strongly recommended for your unique situation, as business owners ourselves we feel the excitement of the LLC has overshadowed the reality of our litigious society. In other words, if your careless acts, errors or omissions injure someone even though it was under the auspice of your LLC, good chances you will be personally named in the lawsuit and held liable as the owner of the LLC. Remember that injury is not limited to just bodily injury; it could also mean financial injury.
Officers and directors of corporations are routinely held liable for the actions of the corporation. This is called piercing the corporate veil. Can you say Enron? Piercing the corporate veil typically is most effective with smaller privately held business entities (close corporations) in which the corporation has a small number of shareholders, limited assets, and separating the corporation from its shareholders would promote fraud or an inequitable result. Sounds like about 99% of the LLCs and small corporations out there.
So, what do you do? Securing a decent umbrella policy, both at the personal and commercial level, is our strong recommendation for liability arising from your acts, errors and omissions. Speak to your insurance agent, but typical umbrella policies are $300-$500 per year. We’ve expanded this LLC fallacy in our KB articles.
S Corp Election, Lower Self Employment Taxes
Reducing your self-employment taxes is the main reason business owners want to be taxed as an S Corp. There are some issues such as payroll, corporate tax return requirements and passive incomes. But if you have over $30,000 in net profits after expenses, you might want to give it some serious consideration. Please read our book titled Taxpayer’s Comprehensive Guide to LLCs and S Corps and our S Corp formation questionnaire-Basically you will save 8% to 10% of your net income in taxes, and perhaps 9% to 12% if paying for health insurance through the business. This is based on $100,000 in net business income. If your income is higher, the percentage will drop… but the savings is still huge.
How does business formation work? When should you do it? When should you delay it? Let’s chat!
Benefits of Business Formation
Many advantages are available to you when you form an LLC, partnership, corporation or S-Corp. Section 105 Health Reimbursement Arrangements (HRA), retirement contributions and Section 127 Education Assistance are some of the big ones. Avoiding self-employment taxes through an S corporation. Pulling tax-free money out through an Accountable Plan for your home office. All good stuff.
Business Advisory Service Plans
WCG specializes in small businesses who generally have fewer than 100 employees. Why? We want to help people, and more importantly we want to help the business owner directly. Frankly speaking, once a business gets to a certain size management layers get in the way of owner access. Access allows us to ensure the owner(s) are leveraging the most out of their business for themselves and their families.
Because small business is a core competency for us, we have created business advisory service plans which include these really cool things-