What is the Best Structure for My U.S. Company? LLC? C Corporation? Other?

How To Choose The Right Structure for Your Business

In recent years the LLC has become the darling of entrepreneurs and small businesses around the country. But the LLC is not always the best choice. Sometimes a Subchapter S corporation or another structure is preferable. This article explains the various structures and reasons why you might choose one over another.

Determine Your Long Term Goals

Is your goal to create a company that will grow and then go public, or be sold to a larger company for millions of dollars, or do you intend to run a small family business where you, members of your family, and perhaps a few trusted associates will be involved? Will you operate primarily in your home state, or will your focus be national or international? These questions are critical in deciding how to organize your new business. For example, if your goal is to be acquired or go public, you probably want to create a “C corp.” If you and a few friends or family members are creating a business that will not expand, at least in terms of owners, an LLC may be perfect. On the other hand, you may want the formalities of a Subchapter S corporation.

When to Use an LLC

LLC’s and corporations both insulate the owners from liability. An LLC has “members” rather than shareholders. The members can run the company or have one or more “managing members” do so. The LLC is an excellent tool for holding rental property–I recommend that each building be held by a separate LLC so that any liability is limited to that building. If your company is going to have only a few owners or members, an LLC may be ideal. The paperwork is somewhat simpler than a corporation (though many states allow “close corporations” in which the shareholders run the organization just like members of an LLC). The LLC is usually a good substitute for a sole proprietorship. Note that all income from the LLC will be treated as ordinary income and subject to FICA and income tax. Although you can elect to have an LLC taxed as a corporation, generally the LLC is taxed like a partnership or sole proprietorship and profits are distributed to the members and taxed as ordinary income.

When to Use a C Corporation

A C Corporation is a garden variety corporation with no limits on the number of shareholders it can have. If you want to grow your shareholders and maybe go public or be acquired, a C Corporation is generally the best choice. The local XYZ Store can be a C Corp, and IBM is a C corp. When creating a C Corporation, you will need guidance on how many shares to authorize and how many shares to issue. This is true for both a C corp and a Subchapter S Corp.

When to Use a Subchapter S Corporation

If you create a corporation, you may file a form with the IRS asking to be treated as a Subchapter S Corporation. In order to qualify, the number of shareholders must be limited and no shareholder can be a corporation. The advantage of the Subchapter S Corporation is that profits or losses are passed directly to the shareholders and the corporation itself is not taxed. With a Subchapter S, you can pay yourself a salary but distribute some profits as dividends, possibly avoiding self employment tax on some income.

Where Should I Organize My Business?

Generally speaking, you can organize your business in any state where you have an actual presence. That can be the state where you live or it can be a state where you have an office. Many companies organize in Delaware, because Delaware does not require companies to have a physical office in Delaware. You can have your registered agent there serve as your office. There are three things to consider: First, where do you have a physical presence. Second, what are the franchise or similar fees charged in the states you are considering. For example, CA charges $800 a year, while Delaware charges less than $200 for a small company. Finally, in what state will your business be taxed and what are the tax rates there? If you can organize and operate your business in a state with lower tax rates, that is usually an advantage.

Can You Give Some Examples?

The following examples may help. (1) an interactive advertising client was virtual, with all staff working in different locations around the country. The goal was to go public or be sold. I formed a DE C corporation for the company; (2) a TX HR consulting firm is owned by four persons. They do business nationally, but they have only one office which is in TX. I created a TX close corporation and chose Subchapter S status; (3) another Texas HR and recruiting firm is smaller and owned by one person. I created an LLC for that client. (4) a CA based client incorporated with a C Corp. in DE created a subsidiary. We put the subsidiary in PA because there is a nominal presence there and the franchise fees were modest.

 For more information on selecting the best structure for your business or for other advice on setting up a company in the United States contact Attorney-Author Kenneth Sprang at ksprang@wibclaw.com or call 202-340-1215.