Starting Your Outdoor Recreation Business: Entities and Taxation
Posted: April 16, 2020 Filed under: Uncategorized | Tags: Business Association, Business Trust, C-Corp, Cooperative, Corporation, EIN, FLP, joint venture, Limiated Liability Limited Partnership, Limited liability company, Limited Partnership, LLC., LLLP, LP, Non-Profit, Non-Profit Corporation, Partnership, S-Corp, Sub S Corp, Sub-S, TIN, Trust, Unincorporated Association Leave a commentChoosing and Creating the Right Entity for Your Business
Starting any business now days you should create an entity, corporation, limited liability company, partnership, joint venture or trust to run the business. This helps your accounting, provides you greater tax options and protects your personal assets from a creditor. A creditor can mean someone you owe money to or an injured guest who is suing you.
Protecting your personal assets is probably the most important item on the list followed closely by how you want any profits taxed to you and/or to the entity.
The type of entity you want to create is different in many cases from the way it is to be taxed. The most confusing is Corporations, and Limited Liability Companies taxed as a Sub-S corporation. Everyone always speaks of a Sub-S Corp or S-Corp. However, no such thing exists. If you go to any Secretary of State’s website to create your new entity, you will not see Sub-S listed as an option.
Sub-S is not a type of entity. Sub-S is a way an entity is taxed. You hear people say they have a Sub-S corporation they are referring to the way their entity is taxed not the type of entity. There is no such thing as a Sub-S corporation. There are corporations and limited liability companies that are taxed as under 26 U.S. Code Chapter 1, Subchapter S of the Internal Revenue Code.
If you listen solely to your CPA, if they are not up to date, they will create a regular corporation or (C-Corp) and file it with the IRS as a Sub-S for tax purposes creating liability nightmares for you later. (That is the first reason why you should not have a CPA providing legal advice, besides it is illegal.) Besides, the IRS issued a ruling almost a decade ago that allows a Limited Liability Company (LLC) to be taxed as a Sub-S corp.
Below are various charts to help you understand what entity can do, how much work and cost are involved, how much protection and how that entity can be taxed.
| Entity Name |
Ways it can be taxed |
Restrictions |
Rating |
| Corporation | Corporation |
5 |
|
| Sub-S | Must file with IRS & meet restrictions Filing must be done within 60 days of creation. Once filed it is difficult to undo. Sub-S also has restrictions on ownership. |
5 |
|
| Non-Profit Corporation | Non Profit Corporation | Requires IRS application to receive non-profit status | 8 |
| Partnership | Partnership | 1 | |
| Limited Liability Company | Sole Proprietor | Must be indicated on EIN & LLC documents | 10 |
| Partnership | Must be indicated on EIN & LLC documents | 2 | |
| Corporation | Must be indicated on EIN & LLC documents | 8 | |
| Sub-S | Must file with IRS & meet restrictions. (See Above) | 10 | |
| Limited Partnership | Partnership | 6 | |
| Limited Liability Limited Partnership (FLP) | Partnership | Expensive and a lot of paperwork each year, however the most effective entity to protect assets | 10 |
| Entities not created by Application to the State (most states) (Therefore taxed as one of the entities above) |
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| Joint Venture | Determined by the taxation of the parties to the Joint Venture | a contractual joint venture
a joint venture partnership a joint venture company |
3 |
| Cooperative | Created by Contract | 2 | |
| Unincorporated Association | Recognized in Some states | 1 | |
| Business Trust | Usually taxed as a Corporation, sometimes as a trust | 5 | |
| Business Association | Can be taxed as a partnership or a non-profit organization | 4 | |
Another big issue is the difficulty in keeping the entity current, the paperwork updated and to make sure you have the required meetings.
| Entity Name |
Amount of Paperwork |
Rating |
| Corporation | Requires annual shareholder meetings and at least quarterly board meetings. All meetings must have agendas and corporate minutes. Formalities of creation and running the corporation are strict and failure to do so may result in the corporation being dissolved by the courts. |
5 |
| Non-Profit Corporation | Requires annual shareholder meetings and at least quarterly board meetings. All meetings must have agendas and corporate minutes. Formalities of creation and running the corporation are strict and failure to do so may result in the corporation being dissolved by the courts. |
5 |
| Partnership | Every partner is equally liable for any liability of the partnership or another partner. Extremely difficult to dissolve or leave partnership unless partnership agreement provides clear exit structure. |
4 |
| Limited Liability Company | High amount of protection with the least amount of corporation formalities. Annual update with the Secretary of State is required and a yearly meeting with minutes is recommended. |
9 |
| Limited Partnership | Initial Partnership Agreement is critical. After that the paperwork is minimal. |
7 |
| Limited Liability Limited Partnership (FLP) | Creation paperwork is critical and requires several different types of entities, such as LLC’s to also be created so the paperwork burden is massive. After that the paperwork burden does not decrease much. Each entity must be kept up to date and the relationship of the entities must be created by contract. |
4 |
| Entities not created by Application to the State (most states) (Therefore taxed as one of the entities above) |
||
| Joint Venture | The initial paperwork is critical. After that it is minimal. Joint ventures are usually for a short duration |
6 |
| Cooperative | The organization agreement is minimal, the members of the cooperative run the co-op and these meetings are important |
5 |
| Unincorporated Association | Usually there is no paperwork and no protection. |
8 |
| Business Trust | A business trust is the predecessor the modern corporation. The trust must be set up with care to qualify under state and federal law (IRS) to run a business. Rarely used now days, but appropriate in the right circumstances |
4 |
| Business Association | Rare and all based on the paperwork |
2 |
What is not reviewed above is running your business as a sole proprietor. There is no paperwork, little accounting and no liability protection. Your tax options are also limited; you are taxed as a sole proprietor. Because it provides no protection, no tax benefits and little value for any other reason, it is not considered an effective way to run a business.
Obviously the best choice now days is an LLC. It can be taxed a multitude of different ways and provides the greatest asset defense for the money with the least amount of paperwork.
The best option is the Limited Liability Limited Partnership; however, you will need to work with an attorney as long as the LLLP is holding assets. Each entity within the LLLP must be properly created and have the correct agreements for the running of that entity and its relationship to the other entities and the LLLP. However, it is virtually impervious to litigation or claims. The problem is the initial costs can be $20,000 and running the LLP can be $5,000 to $10,000 a year in additional legal and accounting fees.
Paperwork
Make sure you complete all the paperwork required to be an entity in the state where you entity was created. That is not just the filing with the Secretary of State. Failure to have the additional paperwork can mean your entity is void. Creditors will go through all of your entity documents and use what you are missing proving your entity is just a sham and close you down.
| Entity Name |
Type of Paperwork |
| Corporation | Articles of Incorporation
Bylaws Notices of Shareholder meetings Notices of Board of Director Meetings Minutes of Shareholder Meetings Minutes of Board of Directors meetings Board Resolutions Pre-Incorporation Agreement Consent of Incorporators Stock Ledger S-corporation election (if that is the preferred tax method) Stock Purchase Agreements Shareholder voting Agreements Special Meeting Notices Waiver of Shareholder Notices Waiver of Shareholder Meeting Not Mandatory but Important Buy/Sell Agreement Stock Sale Restriction Agreement |
| Non-Profit Corporation | Articles of Incorporation
Bylaws Notices of Shareholder meetings Notices of Board of Director Meetings Minutes of Shareholder Meetings Minutes of Board of Directors meetings Board Resolutions Pre-Incorporation Agreement Consent of Incorporators Stock Ledger S-corporation election (if that is the preferred tax method) Stock Purchase Agreements Shareholder voting Agreements Special Meeting Notices Waiver of Shareholder Notices Waiver of Shareholder Meeting Not Mandatory but Important Buy/Sell Agreement Stock Sale Restriction Agreement Closely Held Corporation Agreement |
| Partnership | No paper work is required. However operating a partnership without a partnership agreement that sets forth accounting and exit or dissolution issues can create legal and accounting nightmares. |
| Limited Liability Company | Articles of Organization
Operating Agreement Minutes of Annual Meeting Not Mandatory but Important Buy/Sell Agreement Stock Sale Restriction Agreement |
| Limited Partnership | Initial Partnership Agreement is critical. After that the paperwork is minimal. |
| Limited Liability Limited Partnership (FLP) | LLLP Agreement
Agreement to create LLLP LLC Paperwork Paperwork transferring assets in to LLP Minutes of Annual Meeting Contracts for managing all entities owned by the LLLP Contracts for the operation and management of the LLLP Proper Paperwork for all entities owned by LLLP |
| Entities not created by Application to the State (most states) (Therefore taxed as one of the entities above) |
|
| Joint Venture | Joint venture Agreement |
| Cooperative | Cooperative Agreement |
| Unincorporated Association | |
| Business Trust | Trust Agreement
The trustee will want to keep meticulous notes and copies of all communications with third parties, assets and beneficiaries of the trust |
| Business Association | Rare and all based on the paperwork |
Where should you incorporate.
For decades, everyone wanted to incorporate in Delaware, then Nevada and now day’s South Dakota. Until you can hire an attorney in each of the states where you have an entity, or you want to take your company public, it is not worth the time and money. The cost of putting together and running an LLC in the state where you are doing business can be Ten Percent of the cost of running an LLC in another state.
There is nothing that says after your LLC is up and booming you cannot move it to another state. However, a better idea is to have another entity created in the state where you want to be, own the initial LLC. An example of that is Google was created but is now owned by the Alphabet Corporation. Your LLC can be started in Colorado and when you want to go public, you create a Delaware Corporation which owns the LLC.
Don’t spend $5,000 now to create an entity in a state for something that may happen ten or twenty years from now.
Foreign business wanting to do business in the US.
If you based outside of the US, the information above is no different for you, then it is for a US based business. Create an entity where your business is located or where your attorney is located. That will probably be an LLC that is owned by the entity that you have in your home country. You will have to acquire a Tax Identification Number (TIN or Employer Identification Number (EIN) which are different phrases for the same IRS number).
Once you acquire a TIN you can then open a US bank account to do business.
Summary
Setting up your first entity should not be difficult. Not setting up an entity can be the start of the end. Get good advice, work with someone you get along with and who is willing to explain what you need to know and using this information, concentrate on getting your new business up and running.
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Posted: February 25, 2016 Filed under: Uncategorized | Tags: Hip Tips, Non-Profit, Questus, Questus Strategies Leave a comment
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Dolores River Boating Advocates needs another Board Member: Join and maybe save a river
Posted: February 20, 2015 Filed under: Colorado | Tags: Boating, Dolores River, Fishing, Non-Profit, Rafting, Whitewater Rafting, x, y, z Leave a comment
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Great article about the risks of an organization creating standards for members of the industry – and I did not write it
Posted: September 24, 2014 Filed under: Uncategorized | Tags: Center for Association Leadership, Certification, Insurance, Legal liability, Liability insurance, Non-Profit, Professional certification, Standards, Trade association Leave a commentThe article exams the ways that standards can come back and be a liability for the organization that created them.
The Center for Association Leadership is the trade association for non-profit association directors. Its purpose is to provide information and education for non-profit associations, their directors and their boards. Part of that education is articles by attorneys to outline the risk areas of association.
One article was sent to me by one of my trade association clients. It is titled Certification and the Law. The title is a little misleading. The article is really about standards rather than certification. If you read the article you will see the term certification is used interchangeably with standards.
The article talks about the risks of doing so first and discusses the National Spa and Pool Institute litigation in the late 90’s that put the association in bankruptcy. The legal costs alone exceeded the insurance available to pay the claim.
Thankfully, full-scale judicial attacks are relatively rare, but as the cases involving the National Spa and Pool Institute show, such claims can be devastating. NSPI lost a jury trial in 1998 which, inter alia, alleged that NSPI had failed to exercise a duty of using “reasonable care” when it promulgated its swimming pool standards. NSPI’s legal defense costs greatly exceeded its insurance coverage. To avoid being shut down by the jury’s verdict and in order to post a bond for the appeal of the case, NSPI filed for Chapter 11 reorganization.
There are many other legal issues discussed in the article including educational programs etc. but I’ll quote sections concerning creating standards that I think are important.
Antitrust. Certification programs beg antitrust scrutiny, given that the object of standard setting is to bring competitors together to set criteria for, among other things, restricting entry into a field. Antitrust law prohibits anyone from unreasonably creating a barrier to practice in a profession. Therefore, the certification organization must make sure that all of its eligibility requirements are reasonable-that is, relevant to determining the professional’s skill level and not so high as to block the majority of professionals from being eligible to apply for certification.
The article discusses the liability requirements to hold an association liable for its standards.
Third-party reliance. If a customer, patient, or employer is injured by a certified product or professional, it is possible that the certifying organization will be held liable for negligence or negligent misrepresentation. The argument follows that the person relied on the certification as a guarantee of competence; because the certified product or professional did not perform competently, the certification should not have been granted. Thus, it is argued, the standard-setting organization should be liable to the injured person for its mistaken or negligent grant of certification.
In order to find liability, the injured party generally must prove that
the organization should have known better than to grant certification;
the organization should have known that its mistake could result in the injury; and
the injured party was justified in relying on the certification as a guarantee of competence.
There are very few of these types of lawsuits. The article discusses lawsuits that have been filed.
Among those that have arisen, several have held that the organization is not liable in the case of products when it did not manufacture the product that caused the injury and did not exercise control over the manufacturer. Nevertheless, it is clear that liability may be found when certification is negligently granted or maintained. The deciding factor is the degree of control that can be shown that the standard-setting program exercised-or should have exercised-over the product or professional.
As the article points out, lawsuits against trade associations are rare, however, if they do occur, they can be devastating.
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Colorado Secretary of State has created Webinars for Non-Profits
Posted: December 5, 2013 Filed under: Colorado | Tags: Colorado, Non-Profit, Secretary of State Leave a commentThe first is titled Board Education and Effectiveness
On Wednesday, November 13, 2013, the Colorado Secretary of State’s office announced its release of a free eLearning program for directors of nonprofit corporations, entitled “Board Education and Effectiveness.” The first part of this five-part series is called “Fiduciary Duties of Nonprofit Directors,” and is available online through the Secretary of State’s website.
The board effectiveness training program was developed through a series of meetings between the Secretary of State’s office and nonprofit community leaders. The program is designed in hopes of strengthening nonprofits in Colorado through education. The Secretary of State noted that not all nonprofit directors are clear in understanding their roles and responsibilities, so education is a key component to help instill best practices in these directors.
The remaining four segments will be released in the coming months, and the entire course should be available to the public by mid-2014.
See Secretary of State Releases First Part of Series of Webinars for Nonprofit Directors
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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Twitter: RecreationLaw
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Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Dolores River Boating Advocates is looking for a Program Coordinator
Posted: June 21, 2013 Filed under: Paddlesports, Rivers and Waterways | Tags: Dolores River, Non-Profit, Program Coordinator Leave a comment
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Recreation Law 