Corporations and LLC Formation

Limited Liability Companies (LLCs)

LLC stands for Limited Liability Company. Generally speaking, the best form of entity for most small businesses and property owners is the Limited Liability Company (LLC). The LLC is a relatively recent creation in the grand scheme. Although first available in the late 1970s, it was decades later that most states adopted them. The LLC overtook corporations as the most popular form of business entity in the mid-2000s, in large part because of the unparalleled versatility and protection offered by the LLC. Many consider the LLC to be simply light-years ahead of all other forms of business entities.

An LLC is owned by members and operated by either third-party managers or the members themselves. It is a very flexible form of business which accounts for why almost 75% of new businesses formed today are LLCs. The LLC Operating Agreement is the governing document to allow you to arrange the LLC’s affairs as the members choose.

Corporations (Inc, Co, Corp, Ltd.)

Corporations are different from LLCs in that they are owned by the stockholders. A “general corporation” – with a corporate ending of Inc., Co., Corp., or Ltd. – also appoints directors and officers to handle the day-to-day operations, whereas the LLC just has members. The stockholders elect the directors, who then appoint the officers (President, Treasurer, Secretary, etc.). Officers of a corporation are not elected by the shareholders.

Other Entities to Know

The following list contains examples of endings which all apply to “general corporations” having shareholders, directors and officers: Inc., Co., Corp., and Ltd. These all indicate the business is a corporation (and are abbreviations of Incorporated, Company, Corporation, Limited). Incidentally, some states allow “Ltd.” to be used for an LLC or Limited Partnership.

You may have heard of a close-corporation. That is also a form of Corporation designed to cut through some of the corporate separation between the stockholders and officers, as it allows for the elimination of the board of directors. It also has a limited number of stockholders. Historically this was only to be used with family businesses. It is old-fashioned, since most family businesses today would form an LLC if they are not comfortable with the rigid corporate hierarchy.

You may have heard of the S-corp and C-corp, but they are not different forms of corporations at the state level. Instead, those are just tax elections made with the IRS and Division of Revenue after the corporation is formed. An S-corp or a C-corp is not a designation filed with the Division of Corporations at the state level. Instead, the corporation defaults to C-corp status. To elect an S-corp, you should file IRS Form 2553 with the IRS within 75 days of incorporating or within 75 days of the beginning of the calendar year.

You may have also heard of the B-corp, which is a B-Lab certification that can be applied for on behalf of certain entities that provide larger social benefits, other than maximizing profits. Similarly, a “Public Benefit Corporation” is a corporation that can provide stated public benefits. This is really nothing but a regular for-profit corporation, where the corporation is allowed to give away or benefit other causes and concerns consistent with its Certificate of Incorporation without risk of stockholder lawsuits for waste of corporate assets.

Additionally, there is a not-for-profit corporation, which is a type of Non-stock Corporation. Usually these are organized as public charities or private foundations. They do not have stock and instead are run by members through a board of directors. If a non-stock corporation applies for tax exemption by filing IRS Form 1023 and receives a tax determination letter, it can accept donations tax deductible to its donors as an IRS-approved 501(c)(3) corporation.

You may also have heard of Statutory Trusts, formerly known as “Business Trusts.” These are entities which function much like traditional trusts with beneficiaries and trustees. These are flexible and governed by a Trust Agreement. They are not recommended for most business purposes because they require a Delaware headquartered Trustee.

LLC vs. Corporation: Which Is Right for You?

The other types of business entities are variations on partnerships, such as:

  1. LLP (Limited Liability Partnership) – usually only for professionals like lawyers and doctors – Weakness: does not protect you from your own negligence,
  2. LP (Limited Partnership) – requires both active managers called general partners and passive investors called limited partners – Weakness: does not protect the general partner from personal liability,
  3. LLLP (Limited Liability Limited Partnership) – same as LP, but it offers general partner personal liability protection – Weakness: unusual form of entity that is similar to an LLC, but unnecessarily complex,
  4. GP (General Partnership) – no personal liability protection – partners are each jointly and separately responsible for all of their partners actions,
  5. Sole Proprietorship (or DBA– doing business as) – no liability protection whatsoever, inexpensive to form, but very risky.

These above five business types are not right for most businesses. They are clunky for most small businesses or may not offer as much protection or any protection for owners against business creditors.

The Series LLC

One variation of the LLC is the Series LLC. That is one LLC which designates certain classes of assets and members to an unlimited number of internal protected “series” where if operated properly the liabilities of one series do not attach to the assets of the others. In essence, one LLC can set up many protected business units under the same umbrella, similar to subsidiaries. This allows for internal asset segregation without having to pay an additional state fee for each additional “protected series” business unit.

What You Need to Know About the Series LLC

Aside from choosing the entity, you also need to choose the state of incorporation. Since the law where your business is located may not be favorable to your company, such as California, Pennsylvania and New York, you should look to the “gold standard” state for incorporation, which is Delaware. Choosing to incorporate in Delaware may help resolve problems with ownership disputes and other issues down the road, because Delaware is known for having the best corporate laws and courts to resolve ownership and management disputes. Moreover, the shield of Delaware business law tends to better protect owners and managers from lawsuits.