Corporation or LLC?

Business entities can take many different forms - sole proprietorships, partnerships, limited liability companies (LLC), and corporations are the most common ones. As startup sole proprietorships and partnerships begin to grow, the ownership and management realize the necessity of creating a better business structure for the benefits that it will provide, including protecting the company’s assets and shareholders, taking advantage of the tax benefits, and allowing for greater future growth. The most likely entity to establish is a corporation or an LLC, but which is the better choice?

While there are different variations of corporations (non-profits are unique, for example), the two main types are C corporations and S corporations. When incorporating a company, the default form is a C corporation. Companies must elect to be treated as an S (small business) corporation by the IRS, should they wish to do so, and if they meet certain criteria, such as having no more than 100 shareholders that does not include partnerships, corporations or non-resident aliens, and having only one class of stock. C corporations are taxed on their profits, and the shareholders are taxed on the dividends they earn, which is called “double taxation.” Conversely, S corporations have their income or loss pass through to the shareholders, who report that on their personal tax returns and pay tax at their individual income tax rates.

LLCs are similar to S corporations in that they provide a shield to personal liability, and they also enjoy the benefits of pass through taxation. However, LLCs do not have the same restrictions relating to the number and type of owners, and there are fewer administrative requirements. Also, LLC ownership can create the kind of management structure they choose, whereas corporations are required to have a board of directors and certain officers. While the LLC model often is the easier one to establish and operate, there may be situations where a corporation would be the preferable vehicle, for instance where the company plans to approach outside equity investors or to even go public someday.

Although there are distinctions between C corporations, S corporations and LLCs, there are similarities, too. Once created, each becomes a legal “person,” insulating the owners’ legal liability for the debts and actions of the company, and all three can be owned and managed by a single individual (in most states). Additionally, in order to ensure the limitation of personal liability, all must follow certain financial, accounting, recordkeeping and operational formalities.

As the previous discussion shows, when establishing a corporation or an LLC, it is important to consider the costs and benefits of each from both a legal and a tax/accounting perspective. Accordingly, consult with your accountant to discuss the advantages and disadvantages of the different structures based on your unique situation and forecasts, and then talk to your attorney about setting up the right type of company. With help from each, you can be sure to minimize your personal liability, maximize your tax benefits, and create the conditions for future success.

Boilerplate Language

When the occasion arises that you are given a contract or written agreement to sign off on, be sure not to ignore all of the so-called boilerplate language toward the end. Although it is common to place most of the general terms of a contract after the unique sections - such as the obligations, compensation and term - much of this seemingly inconsequential, innocuous and irrelevant language can be anything but that.

For instance, most contracts give the jurisdiction and governing law that will be used to interpret the agreement near the end. If there is a conflict in the future and you don’t want to attend meetings and hearings and have your lawyer handle the case in another county or state (or have to retain an attorney there who can), be sure to look at this now. Also, see if there is anything that relates to alternative dispute resolution (ADR), like arbitration. If there is an arbitration clause, is it binding or non-binding and does it require you to waive your right to trial? Additionally, many agreements contain indemnification clauses within the miscellaneous sections, which can have costly consequences and were discussed in a previous post. Terms like these can have a significant impact on your ability to remedy any potential problems.

In addition to reviewing the standard paragraphs that already exist in the contract, there may be some missing that you will want added. Some important terms include the relationship of the parties, prior communication and supplemental documents, assignability, amendments, attorneys’ fees, and notice. The agreement may also say that each side has had the opportunity to have their respective legal counsel review the document, which probably is a good idea even if it doesn’t.

While many of these things may not be deal breakers, they are important and, thus, should be paid attention to, discussed with the other side, and understood by you before entering the agreement. Like the saying goes, “Read the fine print” and make sure that the devil isn’t in the details.

Work for Hire

Traditionally under US copyright law, the rights to a work generally are held by the person creating the work. However, there is an exception to this rule for pieces created on behalf of another. These are called “works made for hire.”

In order for the rights to a certain work to belong to an individual or company other than the actual creator, the work must have been made by an employee within the scope of his or her employment or by someone pursuant to an agreement for the work’s production. If an independent contractor or freelancer creates or contributes to something that has been commissioned by another, the agreement must expressly state that the work is to be considered a work made for hire and, thus, that the rights are to be owned by the party ordering the material.

Accordingly, the presumptions are that works made by an employee are owned by the employer and that works created by an independent contractor are the property of the contractor. These presumptions may be overcome by explicitly stating in writing terms to the contrary, by having both parties sign the agreement, and by doing so before work has begun. Additionally, while the work made for hire principle applies to copyright law, there are similar rules dealing with other forms of intellectual property, such as patent law’s “hired to invent” doctrine.

Whether commissioning a work or being hired to create one, be sure to have the agreement specifically state what is being created and who owns the rights to it. If you are the hiring party, do not think that just because you paid for it that you own the copyright to it. For creators, keep in mind that once ownership is transferred to another via a work for hire agreement, that individual or company legally is considered the author with all of the rights of ownership in the work, including credit and control. If you wish to be credited as the author of the piece, be sure to get it in the agreement and do not assume that it will be attributed to you otherwise. Lastly, many work for hire agreements contain an assignment of the entire copyright in the work in case there is some kind of problem with the work for hire transfer.

If you need a work for hire agreement or are entering one, it is best to consult with an attorney who specializes in this field to help you understand the transaction and relationship and to assist you in protecting your rights and interests.