There are lots of things to learn about starting a new company. Today I put together a summary to explain our options to my partners. (Yes, of course, I could explain this all to my husband without typing it up, but our other partner lives in New Hampshire.) And they say that the best way to learn something is to synthesize it, so I guess I'm benefiting from this experience as well.
Here's what I've learned so far this week:
- LLC's have a choice between being taxed as a Partnership or as a Corporation.
- Partnership - The IRS default is for an LLC to be treated as a Partnership for tax purposes, which is also referred to as "pass-through" taxation. As far as taxation goes, this is pretty straightforward. The owners of the LLC simply pay personal income taxes on whatever money they receive from the business. They still have to file tax forms for the LLC every year, including Schedule K-1 forms, which summarize the profits (or losses) for each member, but the LLC doesn't actually pay any taxes to the government.
In this model, owner-members of the LLC are not considered employees, and they do not receive a salary or wage. Instead, they generally get paid by receiving their share of the profits, based on the amount of capital that they have invested. Members can, however, create "special allocations" in their operating agreements, to redistribute profits in ways that are different than just the percentage of the business that they own, but they have to be able to convince the IRS that there are legitimate business reasons for doing so. We're planning to do a special allocation because we all want to get paid a fee based on the number of hours that we work for the company, but beyond those fees, we plan to split the profits equally, because we're all contributing equal amounts to get the business off the ground. My next step will be to check with a lawyer to make sure this is all legit in the eyes of the IRS! - Corporation - The downside to this option is that the tax situation gets more complicated. For this structure, it is assumed that the active members receive salaries from the business, and that a significant amount of the profits will be reinvested in the business from year to year. The business writes off the member's salaries as an expense, so the business isn't taxed for that amount, and the members pay personal income tax on their salaries. That's simple enough. But when it comes to the profits, things get a bit more convoluted. The LLC pays taxes at a corporate rate (just 15% for up to $50,000) on all of the profits generated by the business, and then individual members pay additional taxes (aka "double taxation") on the profits or dividends that they receive.
So essentially, if you're reinvesting most of your profits, you might save money by being taxed at a reduced business income rate rather than paying taxes at the personal tax rate. (With pass-through taxation, you wind up paying taxes at the personal tax rate on profits that you never really received because they were reinvested in the business.) The good news is that you can change from Partnership to Corporate taxation at any time, by filing a simple form with the IRS, but the BAD news is that you're not allowed to convert back to Partnership taxation for at least 5 years. So generally, most LLC's don't make the change until they're well established and making a significant profit from year to year.
- Partnership - The IRS default is for an LLC to be treated as a Partnership for tax purposes, which is also referred to as "pass-through" taxation. As far as taxation goes, this is pretty straightforward. The owners of the LLC simply pay personal income taxes on whatever money they receive from the business. They still have to file tax forms for the LLC every year, including Schedule K-1 forms, which summarize the profits (or losses) for each member, but the LLC doesn't actually pay any taxes to the government.
- Management Methods - LLC's have a choice between Member-Managed or Manager-Managed.
- Member Management - Most LLC's are managed by all of their members, and this is exactly what we want to do. The key requirement here is that all of the members (owners) play an active role in managing the business. Otherwise, everyone's share in the business could be considered a "security" (i.e. an investment, like stock, where you expect to make a profit based on other people's efforts) and then you might have to file for an exemption with the SEC. Or, worse yet, you might not get an exemption and you'd have to comply with all of the disclosure requirements.
- Manager Management - This structure allows an LLC to be managed by a) a subset of the LLC members; b) a mixture of some members and some non-members; or c) a person (or group) who isn't a member. In the case of Option A, an LLC could be managed by two members who work in the business full-time, while three other members (who aren't interested in actively managing the business) just invest money and hope to make a profit. Option B - An LLC receives some capital from an outside investment group, and, in exchange, that group asks to have one of their partners or employees involved in running the business. Option C - The owners of an LLC hire a CEO to manage the business on their behalf.
In the case of Manager Management, the shares in the company will certainly be considered securities, but there can be some tax advantages for the non-managing members. Members who are managers of an LLC have to pay self-employment taxes, including the full tax amounts for Social Security and Medicare. (If you're an employee of a corporation, your company pays half of these taxes for you.) Non-managing members get to skip these.
P.S. I am not in any way an expert on this subject, and I am certainly not offering any legal or tax advice here. I just thought that this was sort of interesting, in a convoluted sort of way, and since I had already done the work, I thought I'd share it, in case anyone out there is interested in learning something new. Or not.
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