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Celebrating 50 Years: The Incserv Story
Here you can find the answers for many of your Frequently Asked Questions. The majority of these questions have come from people like you looking to learn more about the type of work they do. If you don’t find your answers here, email us for assistance!
The domestic state is the state in which the entity has been formed.
The foreign state(s) is any other state the entity is qualified to do business in.
Name availability is a check to see if the entity name you wish to use is not being used by any other entity. Nor is there a name conflict in that state. The name reservation usually occurs after the availability check in case the entity is not ready to be formed and filed but the company does not wish to lose the name.
An LLC is more flexible than a corporation and simpler to maintain, yet still provides its members the limited liability protection available to a corporation while enjoying the pass-through tax treatment of a sole proprietorship or partnership. An LLC is run under an Operating Agreement rather than corporate by-laws.
Members of an LLC are the owners of the company, who generally report tax liability on their personal tax returns, thereby paying taxes at the lower personal rate. Members can draw funds from the LLC without the double taxation of a C corporation. The type of entity may be selected on IRS Form SS-4, Application for Employer Identification Number. In some instances, it may be necessary to fileIRS Form 8832, Entity Classification Election.
A corporation (also known as a C corporation) is an independent legal entity owned by shareholders. The liability lies with the corporation, not the shareholders for all actions and debts incurred by the business. Depending on the state, the entity must include a corporate designation (corporation, incorporated, limited) at the end of its business name.
Stock gives rights of ownership (in part) of the assets of a corporation and a right to an interest in any surplus after the payment of debt. The number of shares of stock a company desires to authorize is determined by the corporation and set forth in its corporate documents. In some jurisdictions, a par value is set for each share of stock as the minimum consideration required to be paid for shares sold by the corporation. Among others, classes of stock may include common stock, preferred stock, and/or convertible stock. In many jurisdictions, the number of shares directly affects the franchise tax amount that will be due. One should consult with an attorney or accountant if they are unsure what to list when forming their company.
A C corporation is a corporation taxed for income tax purposes by the Internal Revenue Services (IRS) at corporate tax rates, which may be higher than the tax rates for other types of entities. Owners take either a salary (which then necessitates the filing of quarterly and annual payroll tax filings) or dividends using after tax dollars. If no other tax status is selected by the corporation and approved by the IRS, it will by default be a C corporation. A C corporation will provide limited liability for its owners.
A C corporation allows for the easy transfer of ownership through the sale of stock and will continue to survive past the deaths of individual shareholders.
A C corporation is the most rigidly structured and organized. Complete and accurate record keeping is imperative in order to preserve the liability protection available to its owners. Each year, the shareholders must hold an annual meeting or take action by written consent (depending on the corporation’s by-laws and applicable state statutes) to ratify actions taken on behalf of the business for the previous year. A separate bank account must be maintained and there may be no co-mingling of personal and corporate funds. All assets of the corporation (such as bank accounts, automobiles, credit cards, loans) must be in the name of the corporation, although a shareholder may be asked to guaranty payment of corporate borrowing. It is important to remember, a corporation is an “alter ego” of the owner and when a corporation does not act like a separate entity, courts may decide to “pierce the corporate veil”; thereby taking away the limited liability protection afforded a corporation. Fraud may also result in the corporate veil being pierced.
S corporation status is one afforded by the IRS. To become an S corporation, first a regular or close corporation is formed, and then a Form 2553 is completed and filed with the IRS to declare S status. An S corporation is not taxed as a separate entity by the IRS, but its profits “pass through” to the individual stockholders and are taxed at each individual taxpayer’s income tax rate. Profits and losses are passed through to the stockholders’ personal income tax returns. With an S corporation, shareholders may take a “reasonable” salary as well as shareholder distributions. Payroll expenses will be assessed against a shareholder’s salary, as with any other employee.
An S corporation, despite its distinct taxing structure, provides limited liability for its owners, just as a C corporation does. As with a C corporation, complete and accurate record keeping is essential for limited liability to be protected.
S election must generally be made within 75 days of the state filing organizing the corporation and the form must be signed by all shareholders of the corporation.
A close corporation has special provisions, which you must elect to be subject to, and which may be set out in the certificate of incorporation. Special provisions generally include (a) the requirement that the number of stockholders must be specified and cannot exceed a specific number, (b) specific restrictions on transfer of stock will apply to all stock of the company, and (c) there may be no public offing or trading of stock, within the meaning of the United States Securities Act of 1933, as amended. Shareholders in a close corporation will generally take an active part in the management of the company.
A benefit corporation is a for-profit company similar to a C Corp, but with additional language in its charter that indicates an additional consideration when making corporate decisions. This additional consideration will vary from state to state, but generally includes a positive impact on the society, workers, community, or the environment. While the directors of a C corporation are legally bound to only consider the interests of shareholders when making decisions, the directors of a benefit corporation may make decisions based on the special consideration set out in the corporate charter. Benefit corporations generally require a higher degree of transparency, and not every state allows for the formation of a benefit corporation. You should discuss with your attorney or accountant if you are considering forming a benefit corporation.
A non-stock corporation (called a not for profit or nonprofit corporation in some states) is formed and then the appropriate application for recognition is completed and filed with the IRS. Non-profit status is granted by the IRS. Contrary to the sound of its title, a non-profit corporation may end its fiscal year with money or assets in hand. A non-profit corporation is different from a regular or close corporation in that there are no stockholders to whom “profits” may be passed. When forming a non-profit corporation, it may be necessary to include language in your formation document agreeable to the IRS and pertinent to the exemption you will be requesting. Check with your attorney or accountant to determine the correct wording and exemption form or go to the IRS website for further information. Only the IRS can determine whether your corporation qualifies for tax-exempt status.
For those entities applying for exemption under Section 501(c) (3) of the Internal Revenue Code (IRC), a Form 1023, Application for Exemption, must be filed within 15 months of formation of the entity. If you are forming a non-profit corporations that may not be applying for tax exempt status under Section 501(c) (3) of the IRC, you may read about other 501(c) organizations at http://www.irs.gov/publications/p557/ch04.html.
Churches are automatically afforded tax exempt status and are not required to file a Form 1023 or annual tax return. Homeowner associations are not considered non-profit corporations by the IRS and are required to file a Form 1120-H with the IRS.
A partnership is a single business owned by two or more people sharing in the ownership.
General Partnerships equally divide profits, liability and management equally among the partners.
Limited partnerships, or partnerships with limited liability, are more complex than general partnerships. Limited partnerships allow partners to have limited liability as well as limited input with the management decisions of the partnership.
When two or more persons will be co-owners of a business, they may choose to form a general partnership. Typically, all of the partners of a general partnership are equally liable for the debts of the partnership and the actions of the other partners. While a general partnership should include the drafting of a partnership agreement, such agreements are not always filed with the applicable secretary of state’s office. To have a partnership where the partners are afforded protection from the debts of the partnership, an LLP may be formed. A statement of qualification will be filed with the appropriate secretary of state’s office indicating the partners wish to have their partnership classified as an LLP. Many LLPs are formed by professional persons such as lawyers, doctors or accountants who, historically, participated in general partnerships.
Publication is required in only three states. Please see the outlines below for state specific information.
Nevada: Publication is required within the first calendar year of registration and annually thereafter, anywhere within the state that publishes legal notices. Entities required to publish are foreign corporations and nonprofit corporations. The due date is March 31 or 3 months after the fiscal year end. This process is governed by the attorney general’s office.
Arizona: Publication is required within 60 days after the application has been approved by the commission, in the county where the company is located. Entities required to publish are foreign and domestic corporations, domestic limited liability companies (LLC), and foreign and domestic limited liability limited partnerships (LLLP) The notices must run for 3 consecutive publications.
New York: Must publish in two newspapers (chosen by the county clerk only) within 120 days after filing articles. County is based on the County indicated on initial filing only, as where the office of the limited liability company is to be located. Entities required to publish are foreign and domestic limited liability companies (LLC) and limited partnerships (LP).
A corporate kit is a repository and record log for your corporation or limited liability company. The corporate kit holds corporate documents as well as the corporate seal and subsequent public record filings and the meeting minutes.
An employer identification number (EIN) is a unique numerical identifier assigned by the IRS and used to identify business, partnerships, or other entities.
A registered agent is required in most states for corporations, LLCs and certain other legal entities to register an address within the jurisdiction for the purposes of receiving tax and legal notices during business hours. This address, or rather the individual or company maintaining it, is known as the “registered agent.” The registered agent accepts governmental mail, annual reports, tax documents, and service of process (SOP) on behalf of the company.
Independent representation is on occasion; by statutory or financial situations require an outside party be named to your board of directors. This unique position is known by several names: independent director, independent manager, or springing member are among the titles.
Charter documents are the formation documents in an entity’s home or domestic state.
Certified copies are photocopies of already filed documents authenticated with an attached certificate stating the photocopy is true and correct. These may be needed when opening a bank account or for other routine business.
A certificate of good standing is a certified document attesting to the status of the entity with the issuing agency (such as the Secretary of State) as of a specified date. Depending on the jurisdiction, the document may include information regarding the formation date, franchise tax and annual filing requirements. It may be needed when opening a bank account or for other routine business.
A certificate of existence states that a company is indeed formed or qualified in the requested state and is active. It often does not address “good standing” status. This is common in states where the “good standing” would require a request from the tax department to ensure taxes were paid and are current.
Franchise taxes are a government tax charged by many states to corporations and partnerships incorporated or qualifies is the state.
Annual reports are generally filed annually or biennially depending on the state. In most cases it confirms address, officers and directors and other information depending on the type of entity. Failure to file these can result in heavy fees and penalties up to and including involuntary dissolution.