Mycorporation’s Weblog

The new year is the perfect time to get organized and clean up your business matters…Whether it’s forming a corporation or limited liability company (LLC), protecting your business assets, or maintaining/updating your corporate or LLC documents, now’s the time.  It’s a new year and time to start 2008 on the right foot – and MyCorporation.com can help with all of your business and document filing needs.             The following advantages of incorporation should be considered when forming a business: (1)        Incorporate!  The most obvious advantage of incorporation is the limited liability of the company’s shareholders. A company is an entity separate and distinct from its shareholders. The company owns and operates the business and also incurs its liabilities, therefore, the owners of a corporation or LLC can minimize, if not eliminate, the personal risk. Forming a Corporation can provide the protection and tax savings needed to give you peace of mind and make your business even more successful and profitable.  (2)        Benefits to Incorporating. The following are just some benefits associated with incorporating: (a)        Tax Advantages.  Incorporation often provides fore greater tax deductions for the business, your employees, and potentially for family members of business owners.  Even if you are the only shareholder and employee of your business, benefits such as health insurance, life insurance, travel and entertainment expenses may now be deductible (b)        Easier access to capital. Most sole proprietorship and partnership business owners know how difficult it is to raise additional capital for their businesses.  Investors tend to shy away from partnership investments because of the risk of subjecting their personal assets to the liabilities that may arise from the business in which they are investing.  On the other hand, a corporation can readily raise capital by issuing additional shares of stock.  Investors can purchase shares in return for their capital.  This allows a business to raise money without incurring debt or interest charges, thus lowering the cost of capital.   (c)        Easier transfer of Ownership.      Through the sale of stock, a corporation can quickly transfer ownership interest without substantially disrupting operations, complex legal documentation, or dissolving the corporation.  Transferring ownership and raising capital are usually easier through the use of stock. Corporations usually have a perpetual life as well, distinct from that of the shareholders. The following items should be considered to maintain full corporate compliance and the protections offered in connection with corporations and LLCs: (1)        Annual Report Filings for Corporations & LLCs. Most jurisdictions require corporations and limited liability companies (LLCs) to pay annual fees and taxes for the privilege of operating as a business entity. In addition to these annual fees, most states also require that corporations (and often LLCs) submit information about corporate status and activities or corporate changes that will become public record. In most states, this information report is referred to as an “Initial/Annual Report” or “Statement of Information.” Corporations and LLC are required to file this Annual Report/Statement of Information even though they may not be actively engaged in business at the time this filing is due. The applicable filing period varies by state and, in most cases; the fees associated with these “informational filings” are nominal. However, if you fail to provide the required information in a timely manner, your corporation and/or LLC could be subject to suspension and/or revocation in addition to penalties or late fees imposed by the state. (2)        Articles of Amendment or Dissolution.  Many states require that a corporation file a Certificate/Articles of Amendment when making an addition to, deleting from, or otherwise altering the existing provisions of the Articles of Incorporation for a General, for-profit Corporation.  If such additions, deletions or alterations have taken place, it is important to consider filing the appropriate Amendment with your Secretary of State.  Also, in the event that a Corporation or Limited Liability Company wishes to terminate its existence, the entity must file Certificate of Dissolution or Articles of Dissolution.  (3)        Entity Conversions.  Many states now allow for the conversion of a stock corporation into a Limited Liability Company, Limited Partnership, or General Partnership.  In addition, a domestic LLC, LP or GP and a foreign entity may, in some jurisdictions, be converted into a Domestic Corporation.  As such, it is important to consider your entity’s desired corporate status, and consult with your accountant regarding the impact of potentially converting your entity, which would require filing the appropriate conversion with the corresponding Secretary of State. (4)        Bylaws, Minutes, Notices. Internally, it is important to maintain corporate documents and observe corporate formalities so as to maintain the protections afforded by your state’s corporate laws, and to minimize the potential for personal liability.  Accordingly, you should make sure that your corporate bylaws are in place, and up to date.  In addition, your state may require that you give appropriate Notice of Regular Annual Meetings of the Board of Directors and Shareholders (or the appropriate Waiver of Notice).  Such documentation is important to maintain on an annual basis, and the beginning of a new year is a great time to make sure your corporation or LLC is “in order.” Each of these items should be considered at least on an annual basis, but the beginning of the year is the perfect time to make sure your corporation or limited liability company is in good standing and that you are handling all of your corporate matters in a timely fashion.  If you need assistance with any of these document filings, MyCorporation.com offers document preparation and filing services to meet your business needs.

In the Internet’s infancy, domain names served merely as a means of locating specific computers on the Internet.  Now, with globalization and commercialization of the Internet, domain names have taken on business identification and trademark significance.  Domain names are now highly visible in the bricks and mortar world, appearing in television, radio, and magazine advertisements, on billboards, and in most company’s advertising materials.  Now that domain names serve a unique advertising and business purpose, confusion may arise when a company’s domain names are not the same as their trademarks, and vice versa. Domain names are distinct from trademarks because domain names are global and unique (a particular string of letters can link to only one site).  On the other hand trademarks may overlap in different industries or different geographical locations.  In the business world, because Internet users often assume a company’s trademark is its domain name, a domain name may become an equally valuable piece of intellectual property, and, like a trademark, a true business asset.  Ultimately, one of the most important means of identifying the goods or services sold by your company will be through its trademarks and corresponding domain name. In fact, your trademark may be the only means for customers to identify your goods or services, and if your trademark is not the same as your domain name, a customer may become confused when searching on the Internet.   Unavailability of a matching domain name could prove devastating to your business. Furthermore, choosing a trademark that is unusable because it conflicts with a prior user of a confusingly similar mark may result in a significant loss of valuable time and money, wasted marketing dollars and goodwill. For these reasons, when considering a trademark and domain name, it is important to take into consideration the following:  Initially, it is important to undertake a comprehensive search of the trademarks.  A comprehensive search typically covers federal trademarks (both applications and registrations), state trademarks, and common law trademarks (marks that have not necessarily been registered on a state or federal database, but are in use).  To the extent that the comprehensive search reveals that your mark is “clean” and available for use, it is important to take all necessary steps to protect your mark, including confirming that the domain name is available for use and registration and filing for trademark protection with the USPTO.  There are numerous advantages to securing federal registration of a trademark. Perhaps the most important advantage is that federally registered trademarks are national in scope, regardless of the actual geographic use made of the mark. This national scope contrasts greatly with the limited geographic range of common law trademarks. Federal registration also makes it easier to prove an allegation of trademark infringement by providing prima facie evidence of trademark ownership and use.  Additional benefits of  federal registration include, among other in things: (1) The right to use the ® symbol in connection with the mark, which may deter potential infringers; (2) The right to sue for infringement in federal court and the possibility to recover profits, damages, costs, and attorneys fees in the event of proven infringement; (3) The incontestable status following five years of registration; and (4) Presence of your mark in third party comprehensive searches. Taking these steps to protect your business identity  at the outset will save a great deal of time and money in the future. 

Trademark Protection Checklist

Most attorneys agree that trademark law is a very complex area of law. Personal efforts to tackle trademark issues is not something I endorse unless you have had at least a few years of legal training. Assuming you have not, let’s take a layperson’s approach to understanding and pursuing the trademark process with the information and services provided by MyCorporation.com:Know Your Rights…and the Rights of Others Against You. Learn about your trademark rights…and about the rights of others. The Trademarks Tutorial and FAQ Center at MyCorporation.com is a great place to start.Assess Your Trademark Eligibility. Is Your Mark, Brand Name, Slogan, or Domain Name even eligible for Trademark protection? Review the article entitled “Analyzing Your Trademark” for a comprehensive discussion about important factors that determine whether your trademark can qualify for protection.Register Multiple Domain Names and Variants. Register the word, phrase, or name as a domain name. Also, save on future legal costs by preventing the infringement with a pre-emptive strike: secure MULTIPLE domain names by registering variants such as: • sound-alike words and phrases
• misspellings
• hyphenated versions
• singular and plural forms of the word(s)
• important TLDs (.com, .net, .org, .biz, & .info)
Search Pending and Registered Trademarks. Search the database of Pending & Registered Federal Trademarks.Search UN-registered Trademarks. While Federal Trademark Registration and protection offers valuable benefits, the MAJORITY of trademark owners HAVE NOT registered their trademarks. While not as powerful as a Registered Trademark, these “UN-registered” trademark owners still possess legal rights and may file suit against you if you infringe an “UN-registered” trademark.
To assess whether you are infringing an “UN-Registered” Trademark, you must Search Public Records (NATIONWIDE) for company names, brands, and domain names that are the same as, or similar to, your desired trademark. NOTE: Because the different states and counties do not offer a united, common database of information for these public records, each state (and every county within that state) must be search ONE-BY-ONE.MyCorporation.com offers a Comprehensive Trademark Search Report consisting of records gathered from 49 states and thousands of different counties and municipalities.Register Your Trademark. Submit your Application for Trademark Registration to notify the world and potential competitors that you have secured a filing date and will be prosecuting infringers to the fullest extent of the law.Once you are granted “Registered” status, not only will your company and its brands gain additional credibility and legitimacy, but you will be empowered with an arsenal of legal weapons that can make defending your trademark rights simple and affordable.Regain Control over Domain Names “Held-hostage” by Cyber Squatters. Use the ICANN Uniform Domain-Name Dispute-Resolution Policy to re-claim a domain name from a cyber squatter that is extorting money from you or illegally re-directing YOUR traffic to his/her website. If you are a REGISTERED trademark owner, it’s MUCH easier than you may think!

The standard “corporation” format used by businesses to protect personal assets and minimize personal liability can also include other types of business entities, including S-Corporations and Limited Liability Companies (“LLC”).  The corporation is America’s most popular and oldest form of business entity. However, with the tax advantages of Limited Liability Companies and S-Corporations, other types of business entities are quickly becoming more popular. 

 Limited Liability Companies 

An LLC combines the limited liability shield traditionally associated with corporations, the structural and financial flexibility of partnerships, and the tax benefits of “pass-through” taxation. As a pass-through entity, the LLC pays no income tax. Instead, items of taxable income, gain, loss, and deduction pass through the LLC to its owners, and are reported by them on their separate income tax returns. Similar to the corporation, an LLC is recognized as a separate legal entity from its “members.” Thus, an LLC can own property and commit itself to contractual obligations.

 IRS Treatment of the One-Member LLC 

An LLC with only one member/owner is automatically considered to be a sole proprietorship unless an election is made to be treated as a corporation via IRS Form 8832. Thus, the sole member of an LLC will file Form 1040  (U.S. Individual Income Tax Return), and will include Form 1040, SCHEDULE C (Profit or Loss from Business) with his/her tax returns.

Regardless of how many members the LLC has, the LLC may file an Election to be Treated as a Corporation for Purposes of Taxation (IRS Form 8832). If an election is made to be treated as a corporation, the LLC must file Form 1120 (U.S. Corporation Income Tax Return).

 IRS Treatment of the Multiple-Member LLC 

If your LLC has two or more owners, it will automatically be considered a partnership unless an election is made to be treated as a corporation as described above. A partnership that has not elected to be taxed as a corporation will file Form 1065 (U.S. Partnership Return of Income). Where an election is made to be treated as a corporation, Form 1120 (U.S. Corporation Income Tax Return) is filed.

In most cases, only the LLC is responsible for the company’s debts thus shielding its members from personal liability. However, there are some exceptions where individual members may be held liable.  Where an LLC member has personally guaranteed the obligations of the LLC, he or she will be liable. For example, where an LLC is relatively new and has no credit history, a prospective landlord about to lease office space to the LLC will most likely require a personal guarantee from the LLC members before executing such a lease.

To take advantage of all potential tax benefits, and if your accountant agrees, Form an LLC online today. Come tax time next year, you’ll be glad you did!

 Learn About LLCs Compare Business Structures Get a Price Quote General-For-Profit Corporations (C-Corporations)  

The term “C-Corporation” merely refers to a standard, general-for-profit, state-formed corporation. A Corporation is taxed as a separate entity under the tax laws. Income earned by a corporation is normally taxed at the corporate level, and the corporation must file a Form 1120 each year to report this income.

After the corporate income tax is paid on the business income, any distributions made to stockholders are taxed again at the stockholders’ tax rates as dividends. Because of these two levels of tax, a regular corporation may be a less desirable form of business than the other business entities (sole proprietorships, partnerships, limited liability companies, or S-Corporations).

Comparison with Partnerships or Sole Proprietorships:

Because the taxation of income to sole proprietorships and partnerships is determined by the tax bracket that applies to each individual owner, a comparison of tax rates that apply to corporations and to individuals can give you some idea of which form of business would save taxes at a particular income level.

Tax-related characteristics of the “C-Corporation” include the following:

• Separate Legal and Tax Life: A corporation which is properly formed and operated as a corporation assumes a separate legal and tax life distinct from its shareholders. A corporation pays taxes at its corporate income tax rates and files its corporate tax forms each year.  A corporation files an IRS Form 1120.

• Avoiding Double Taxation: Generally, the corporation is taxed for its own profits; then, any profits paid out in the form of dividends are taxed again to the recipient as dividend income at the individual shareholder’s tax rate. However, most small corporations rarely pay dividends. Rather, owner-employees are paid salaries and fringe benefits that are deductible to the corporation. The result is that only the employee-owners end up paying any income taxes on this business income and double taxation rarely occurs.

  S-Corporations Another alternative is to make an “S-Corporation Election.”  When choosing a corporate form, as discussed above, it is important to be aware that the profits of a C-Corporation are subject to double taxation, and therefore earnings are taxed twice, once at the corporate level, and again when profits are distributed as dividends to the shareholders. However, a corporation meeting certain requirements (set by the IRS) may file for Subchapter S Corporate status (aka “S-Corporation Election”). This corporate election allows owners of an S-Corporation to elect to be taxed only at the personal level, thus avoiding tax at the corporate level.  

An S-Corporation begins its existence the same way that a “C-Corporation” (discussed above) begins its existence – as a general, for-profit corporation upon filing the Articles of Incorporation at the state level. However, after the corporation has been formed, it may elect “S Corporation Status” by submitting IRS form 2553 to the Internal Revenue Service (in some cases a state filing is required as well).

Once this filing is complete, the corporation is taxed like a partnership or sole proprietorship rather than as a separate entity. Thus, the income is “passed-through” to the shareholders for purposes of computing tax liability. Therefore, a shareholder’s individual tax returns will report the income or loss generated by an S-Corporation.

 Qualifying for S-Corporation Status  

To qualify as an S-Corporation, a corporation must timely file IRS Form 2553 with the IRS. To take effect for the current tax year, the S-Corporation Election must be made by March 15 of the current year if the corporation is a calendar-year taxpayer. However, a “new” corporation may make the filing at anytime during its tax year so long as the filing is made no later than 75 days after the corporation has begun conducting business as a corporation, acquired assets, or issued stock to shareholders (whichever is earlier).

To qualify for S-Corporation status, the corporation must:

• Be filed as a U.S. corporation (i.e. filed with any “state” office within the U.S.).
• Maintain only one class of stock.
• Maintain a maximum of 100 shareholders.
• Be comprised SOLELY of shareholders who are individuals, estates or certain qualified trusts, who consent in writing to the S-Corporation election.
• NOT have a shareholder who is a non-resident alien.

Failure to observe ANY of the above requirements could revoke S-Corporation status at any time. An S-Corporation that loses its status as such may not re-elect S-Corporation status for a minimum of five years.

 Who Should Elect S-Corporation Status?  

Owners who want the limited liability of a corporation and the “pass-through” tax-treatment of a partnership will often make the S-Corporation election. In most cases, corporations that would benefit from S-Corporation status are those who plan to distribute the majority of earnings to its shareholders in the year those earnings are derived. Corporations who plan on retaining earnings for future investments in future tax years often choose the C-Corporation because under the S-Corporation, earnings will be taxed as if they were distributed to shareholders regardless of whether a distribution actually occurred or whether the corporation retained the earnings for future investment.

As stated above, an S-Corporation is a tax designation only. This type of corporation is typically for smaller companies. It provides the benefits of incorporation, while eliminating double taxation.

The above-mentioned tax benefits may or may not apply to you. In particular, some of the benefits described apply only to C-Corporations, whereas others apply only to S-Corporations. For this reason, it is important to consult your accountant or attorney about your particular situation. If, based on your current financial composition, he/she advises you to incorporate or form an LLC, visit mycorporation.com today.

Please consult an accountant or CPA who knows and understands the details of your business, as well as the federal and local tax rules, so that you can make the best decision regarding which form of business entity (C-Corporation, S-Corporation, or LLC) will suit your needs.

A tax calculator may be a great way for you to assess the type of entity and tax benefits associated with incorporating or forming an LLC.

 Learn About Incorporating Compare Business Structures Get a Price Quote C-CorporationsS-Corporations

Limited Liability Companies (LLC)

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