Incorporation vs. LLC – Separate Entity Status
Corporations: When you incorporate a business, you evolve from a sole proprietorship (if you are the only owner) or general partnership (if you have co-owners) into a company that’s formally recognized by its state of incorporation. In other words, it becomes a legal business entity of its own—separate from the individuals who founded it and the shareholders who will own it over the course of its existence.
LLCs: Similarly, when you form an LLC, you are forming a company with its own legal existence—separate from its founders and members (as the owners of LLCs are called).
It’s important to remember that whether you incorporate—or form an LLC—it is the corporation or LLC that owns the business. You own the corporation or LLC. So which wins—corporation or LLC? When it’s important to have a separate legal entity, both entity types come out even in this instance.
LLC vs. Inc – Formation
There are similarities and differences in how you form a corporation vs. how you form a limited liability company. Both are formed by filing a document with certain information with the Secretary of State (or whatever the business entity filing office is called) in the state that you choose for your home or domestic state.
That document is often called Articles of Incorporation for a corporation or Articles of Organization for an LLC. You then have to draft bylaws for a corporation and an operating agreement for an LLC.
There are some differences between these documents to be aware of in making the LLC vs. Inc. decision.
The Articles of Incorporation generally contain more information and are used to opt out of or change certain statutory requirements that the corporation will be subject to otherwise. Also, certain governing provisions have to be included in the articles to be effective.
The Articles of Organization for an LLC contain fewer required pieces of information and almost all the provisions for how it will be managed, and the rights, duties, and liabilities of members and managers are contained in the operating agreement.
The Articles of Incorporation and Articles of Organization are public documents. The operating agreement is not.
So, if LLC vs. Inc. were a boxing match and you want less information about the business’ internal affairs available to the public, then LLC would win this round.
LLC vs. Corporation – Limited Liability Protection for Owners
One of the main reasons to form a corporation or LLC for a small business is to avoid personal liability for the business’ debts. As we mentioned earlier, corporations and LLCs have their own legal existence. It’s the corporation or LLC that owns the business, its assets, debts, and liabilities. The shareholders or members own the corporation or LLC and their liability is limited to their investment.
Limited shareholder and member liability are well-established and respected rules. But that doesn’t mean they can never be liable for anything. They’re still liable for their own wrongdoing—such as if they breach the operating agreement. And owners can be liable for certain activities if there’s a statute that imposes liability on them.
In fact, members and shareholders can still be held liable for their company’s debts under a legal concept known as “piercing the corporate veil”. Veil piercing is a remedy in which courts will disregard the corporation or LLC’s separate existence. With the entity no longer in the picture, the shareholder or member becomes liable for the business’ debts.
In Florida and most states, Single member LLCs do not provide reliable asset protection. Florida’s LLC statute law permits creditors to use foreclosure and other alternative collection remedies against a debtor’s interest in a single-member LLC. The creditor must demonstrate that its judgment will not be satisfied in a “reasonable time” from a charging lien on the single-member LLC membership interest. In most cases, LLCs designed for asset protection should include at least two members, and existing LLCs should add at least one member to restrict a creditor to a charging lien.
In deciding whether to pierce, the courts apply various tests. One of the most frequently used tests looks for two things: 1) “a unity of interest” between the corporation or LLC and its owners such that their separate identities cease to exist, and 2) that the corporation or LLC was used to perpetrate a fraud or achieve an inequitable result.
What the unity of interest test basically asks is whether the shareholders or members respected the fact that the corporation or LLC owns the business. There are a number of factors the courts will look at including whether the corporation or LLC was undercapitalized, if the shareholders or members used the business’ asset for personal purposes and whether there was a failure to follow compliance requirements. So, basically, in the LLC vs. Inc. boxing match, this round can be judged even.
LLC vs. Inc. for Taxation
A key difference between an LLC and a corporation is the way they’re treated at tax time. And in the match of LLC vs Inc, taxation is almost never a draw. It will favor one or the other.
LLC Taxation
An LLC is a pass-through business entity for federal income tax purposes. That means it does not have to pay federal income tax. Instead, its profits and losses go straight through to the owners. Business income equals personal income, so the owner pays the tax on his or her personal return, and it’s taxed at the individual rate. Since only the members pay tax, there is a single level of taxation.
While a single level of taxation is a good thing, it doesn’t guarantee that being taxed as an LLC is better for you. In some circumstances, LLC owners can earn a substantially increased tax bill through the addition of the self-employment tax, currently at 15.3 percent. And it can also depend upon whether the corporate or personal income tax rate is higher and what exemptions and deductions the owners are entitled to.
Pass-through taxation is the default rule. If you do nothing, your LLC will be taxed as a partnership under Subchapter K of the Internal Revenue Code. This is the case when you have more than one member, or your LLC will be disregarded completely for income tax purposes if you are the only member.
But if it is to your LLC’s advantage to be taxed as a corporation, you have that option. You can file Form 8832 “Entity Classification Election” with the Treasury Department, and your LLC will be taxed as a corporation under Subchapter C. Then, if you so desire, and if your LLC qualifies, you also have the option to make a further filing to be taxed under Subchapter S. We’ll take a further look at S corporations vs. C corporations in the next section.
Corporation Taxation
As for corporations, there are two kinds for income tax purposes. There are C corporations—so named because they are taxed under Subchapter C of the Internal Revenue Code (IRC). And there are S corporations—so named because they are taxed under Subchapter S of the IRC. C corporations are subject to double taxation. S corporations are subject to single taxation.
When you incorporate, your corporation, by default, will be taxed under Subchapter C. Your corporation is a separate taxable entity with the business’ profits and losses taxable to the corporation, not to the owners. As a result, corporations are taxed at the corporate rate. Then, if the corporation distributes its profits to the shareholders, say in the form of a dividend, that is income to the shareholders which they have to report on their personal income tax return. It’s a double tax, and it can seriously cut into the real dollars earned in the end.
However, if your corporation qualifies, you can choose to have it taxed as an S corporation. An S corporation is a pass-through tax entity. Although S corporations and LLCs have that in common Subchapter S has several restrictions that LLCs taxed as a partnership or disregarded entity are not subject to.
In order to be eligible to make an S corporation election—and to continue to be an S corporation—the corporation must meet strict requirements on number and type of shareholders and types of shares. These rules are imposed by federal tax law, and not state corporation law. Briefly stated, these rules include the following:
PROS AND CONS OF PARTNERSHIPS
Advantages:
Disadvantages: