Sole proprietorship is the simplest form of business, but it also has some disadvantages. So for this installment of the Small Biz 100, I’ll talk about some of the situations where you don’t want to be a sole proprietorship and what types of business you might want to form.
Important: I am not an attorney, and this is not legal advice. It is a compilation of information I’ve read about business startups.
Note: All of this discussion is specific to small businesses in the USA.
Note 2: More info on when TO be a sole proprietorship is in the Checklists for starting your first business post.
When not to be a sole proprietorship
If any of these factors apply, then it’s time to look at other forms of business:
Ownership – if you want to bring in a partner
Liability – if you have the type of business where you are more likely to be the target of a lawsuit
Taxes – if you are going to do so well financially that taxes are going to be an issue
Investment – if you want to be able to bring in other people in an ownership position
Selling – if you want to sell the business and make it easy to transfer to new owners
Other business structures
If any of those qualifiers applied, or you have other reasons, you can start your business with a different form. If you’ve already started your business, you can convert to another form at any time.
Above sole proprietorships, the two most reasonable forms are LLC or S Corp. These two share some benefits:
- Both offer some liability protection for owners (if the company is sued, you are not personally liable, usually).
- Both types can have multiple owners.
- Neither type requires a separate tax return.
- Both allow income to pass through to owners before taxation.
What does that “pass through” business mean? It means that the LLC or S Corp doesn’t file its own tax return and pay taxes. Instead, the income is passed through the company to the owners. Then the owners declare this income on their own tax returns. Of course, no matter what form of business you create, you are responsible for paying taxes on the income of the business. Sorry! No getting around it. You may be able to reduce your overall tax burden by allowing the new business to hire you as an employee. But if you are getting to that point, you have also gotten a tax advisor, right?
The requirements to form both an LLC and an S Corp are fairly similar.
- Both are treated as separate entities and require a new Employer Identification Number (EIN).
- Both require a written agreement to determine how they will operate.
- Both require filings to create them.
- Both require ongoing paperwork, such as official meetings and documentation. (The LLC takes less of this, if you ask me.)
LLC – Limited Liability Company
LLC’s are regulated by the states, and the rules vary. This means there is not one single guide for creating an LLC. I could tell you all about how I formed mine in Oklahoma, but it wouldn’t help you create one in Indiana. The general guideline is to check with your Secretary of State. They usually regulate these filings. You can also check in with your local Small Business Development Center, and they can give you the local scoop.
A few general rules apply nationwide. The owners of an LLC are called members, and the first filing is usually called Articles of Organization. You’ll also need to create the governing document, usually called an Operating Agreement. All the members have to agree to those operating rules. Some states allow one person to form an LLC on their own, and some states require a minimum of two people to start up.
LLC’s can be more flexible in terms of how they are taxed. An LLC can elect to be taxed like a sole proprietorship (probably best for one person LLC’s), a corporation, or a partnership. This is another place where you want to invest in some professional advice, to be sure you select the proper form.
S Corp – Subchapter S Corporation
Because the S Corp is regulated by the federal government, the tax rules do not vary from state to state. So if you plan to do business with locations in several states, go with the S Corp.
Corporations are still created in your individual state, usually with a filing at the Secretary of State’s office. Once you’ve formed the corporation in your state, you need to let the IRS know that you want it to be a Subchapter S Corp, by filing a form 8832 with the IRS. And you need to do that quickly, within 75 days.
General Partnerships and why I don’t like them
Few people choose to go into a general partnership anymore. Every partner is responsible for every debt and decision of every other partner. That unlimited liability is enough to scare most people away, especially since more attractive options like LLCs and S Corps can cover partners.
But sometimes people end up in a general partnership by accident. Just like the default form of a single person business is the sole proprietorship, the default form of a multiple person business is a general partnership. If you go into business with a friend, without putting any arrangements on paper, you just formed a general partnership. The good news? You can re-form as an LLC or S Corp at any time.
This article is part of the Small Biz 100, a series of 100 practical hands-on posts for small business people and solo entrepreneurs, whether in a small town, the big city, or in between. If you have questions you’d like us to address in this series, leave a comment or send us an email at email@example.com. This is a community project!
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