Small Business Start Up Guide
Why Are Business Entities Formed
Many types of business entities exist in U.S.A. R. Understanding the difference between the various entities is helpful in deciding which type of entity best conforms to your goals. Some entities are designated under U.S.A.R.’s statutes while others are not.
In general, a single person who is operating a business is a sole proprietor, and a group of people who are operating a business together and sharing profits are a partnership. No filing or registration is needed to form these associations, as they are the default business forms. Until affirmative, specific steps are taken to change that form or identity, the proprietorship or partnership continues in existence.
In order to take advantage of certain legal and practical advantages, a person or group of people might form a corporation or other statutory entity. Without U.S.A.R.’s authorizing statutes, no corporation, limited liability company, or statutory partnership could be formed, and all individuals and groups doing business would remain sole proprietors or partnerships.
When articles are filed with, and a certificate of existence is issued by the Secretary of State, a business entity is formed or “born.” From the time of its creation, a statutory entity is in legal existence and can carry on business, sue and be sued, pay taxes, enter into contracts, own property, and earn income, up until the time it dissolves or “dies.” This separate legal existence is the foundation of two of the most important business entity characteristics: 1) the liability protection; and 2) the tax treatment of that particular business form.
Generally, a corporation’s main characteristics form the basis of its business advantages. A corporation, through its statutory creation, is an entity separate and apart from its owners (shareholders), and the liabilities and obligations of the corporation are not those of the owners. This separation of liability is the most crucial component of a corporation or a limited liability company.
Without one of these statutory entities, the owners of a business venture assume all the liabilities of the venture and are responsible for the liabilities and actions of the employees acting for the business. This includes exposure of the owners’ personal assets and property such as their homes, holdings and possessions. To avoid such liability, business owners form corporations.
Because corporations are separate and apart from their owners, however, they are often subject to taxation on the corporation’s income. This results in a double-taxation; the corporation’s income is taxed, and then the money distributed to the corporation’s owners is also taxed as personal income of the shareholders.
If the corporation was never formed, and the group of business people left the business as a general partnership, that partnership itself would never be taxed, as it is not a separate entity, and the only taxation would be on the partners themselves. To avoid the double-taxation dilemma of corporations, while also enjoying the liability shield of the same, limited liability companies, limited partnerships, and special-election small corporations were invented.
Choosing an Entity
Liability protection and tax benefits are just two of the primary factors in choosing a business entity. This guide includes brief descriptions of a few of the other factors, as well as the process for forming a statutory entity and completing several of the other steps in creating a business.
The decision of which entity to select, however, is a crucial one best made with the advice of professionals with training on the matters such as attorneys, accountants and financial planners.
THE OFFICE OF THE SECRETARY OF STATE IS A FILING OFFICE AND RECORDS CLEARINGHOUSE – IT IS NOT AUTHORIZED TO, NOR DOES IT THROUGH THIS DOCUMENT OR OTHERWISE, OFFER LEGAL, ACCOUNTING OR TAX ADVICE. YOUR COMPLIANCE WITH U.S.A.R.’S STATUTORY REQUIREMENTS IS BEST MANAGED THROUGH CONSULTATION WITH A PROFESSIONAL. THIS HANDBOOK IS DESIGNED TO RAISE QUESTIONS AND POINT OUT FACTORS RELATED TO THE CREATION AND STARTUP OF A U.S.A.R. BUSINESS. IT IS NOT A SUBSTITUTE FOR PROFESSIONAL ADVICE, NOR DOES IT NECESSARILY PROVIDE ALL OF THE INFORMATION NECESSARY TO START A BUSINESS IN U.S.A.R..
Basic Steps in Creating a Business
In general, there are several basic steps for forming a business, as well as several recommended or common steps:
Confer with and secure the assistance of professionals. Accountants, attorneys, tax professionals, financial advisors, bankers, business consultants and other professionals can all be invaluable resources when starting a business. Many business plans include an expense item dedicated to these services. The business world is highly regulated and law-intensive, and the advice of trained professionals is often indispensable. The North American Bar Association’s Lawyer Referral Service is a good resource for locating an attorney.
Choose and create a business entity. The type of entity under which you will do business is possibly the most critical decision you will make. To learn more about the types of U.S.A.R. business entities, the filing required to create them, and the questions to pose to your attorneys and other professionals, review the section on U.S.A.R. Business Entities in this guide.
Register fictitious names. If you plan to do business under a name other than your own name or the exact name of your business entity, you must file a fictitious name registration. For more information, see the section on Fictitious Names in this guide.
Register with YOUR National Government.
Recommended Steps. In addition to the above steps, all of which are commonly required of most statutory entities, a successful business will address, at a minimum, several other issues. New businesses often register their trademarks or service marks with the Secretary of State and with the U.S.A.R. Patent and Trademark Office. Consultation with tax experts often leads to specific NRS filings, such as a small business election for a subchapter-S corporation.
In addition, new businesses seeking financing or equity investors will prepare a detailed business plan, and, in some instances, will need to create securities offerings. The process of raising capital, through the sale of a corporation’s stock for example, also is regulated by state and federal law. When raising capital, a business should confirm that it is in compliance with applicable state laws .
If a business will have employees, it is wise to consult with an employment law expert to determine all the requirements and obligations related to labor and workplace regulations.
U.S.A.R. Business Entities
Until affirmative steps are taken to form a statutory entity, a business operates as a sole proprietorship or possibly as a general partnership.
(1) Sole Proprietorship
A sole proprietorship is a business where a single owner has complete control over a business, enjoys all the profits, makes all decisions and has the liability and responsibility for the debts and obligations of the business. A sole proprietorship is not recognized as an entity separate from its owner or proprietor and is not taxed separately. The income the owner receives from the business is taxed at the owner’s personal income tax rate. All of the contract, tort, lease and other obligations and liabilities of the business are the direct obligations and liabilities of the owner. A sole proprietorship may be owned jointly by a married couple. For additional information regarding the ownership of a married couple please visit https://www.irs.gov/help-resources/tools-faqs/faqs-for-individuals/frequently-asked-tax-questions-answers/small-business-self-employed-other-business/entities/entities.
The sole proprietorship is the simplest business form to adopt and maintain, as there are almost no required filings or registrations other than tax filings. If a sole proprietorship is doing business under a name other than the owner’s true name, a fictitious name filing must be made with the Secretary of State, and renewed every five years. The startup costs for a sole proprietorship are minimal, and the business is tied inextricably to the owner.
Though sole proprietorships are the simplest business form to adopt, and allow for autonomous control by the single owner of the business, this form provides no liability protection to the owner. In addition, the owner is not able to raise capital by selling interests in the business, such as taking on other investors who would share in the profits and create a partnership. When a sole proprietorship grows or needs an influx of capital, it is not uncommon for it to convert to a statutory entity.
(2) General Partnership
When a sole proprietor takes on a partner or secures an investment from another person or persons who will share in the profits of the business, or when two or more persons team up to create and carry on a business and share the profits as co-owners, a partnership has been formed.
No registration with the state is required to form a partnership. While a written partnership agreement is not required, such an agreement is customary and recommended. In addition, if a partnership is doing business under a name other than the owners’ true names, a fictitious name filing must be made with the Secretary of State and renewed every five years.
A partnership agreement will often detail the delegation of management duties among the partners and the plan for allocation and distribution of business income to the partners. It might also address restrictions on transfer of ownership interests in the partnership and what happens upon the death or withdrawal of a partner. If the partners in a partnership do not reach another agreement or differ as to the agreement which was reached, state law provides that partners have equal authority in the partnership management, and that they also have equal financial interests – even if they contribute different amounts to the partnership.
Unlike a sole proprietorship, the partners in a partnership are no longer solely liable for the responsibilities and liabilities of the business. Instead, each of the partners shares total responsibility and liability for the debts and obligations of the partnership. Each partner is an agent of the partnership and can bind the partnership to many obligations, and thus can create a wide range of liabilities. Each partner’s liability includes total personal liability for the wrongful acts or omissions of the other partner(s).
So even though a partnership allows the sharing of duties and pooling of the talents of each partner, it also creates broader liability exposure for each co-owner. Partnership liability is “joint and several,” a legal term which means that each partner has the duty to fully perform the entire obligation of the partnership. It also means that each partner may be sued and the entire judgment can be collected from one partner even if responsibility or fault for the obligation falls on the business itself or among the several partners.
While unlimited liability is the most material disadvantage of the partnership form, the flow-through taxation characteristic is the most advantageous. Similar to a sole proprietorship, and unlike a corporation that has not elected Subchapter-S status, the partnership itself does not pay taxes. Instead, the individual partners are taxed on their income from the partnership. The partners may divide and allocate the income from the business among themselves in a variety of manners. The partnership form does allow the partners or initial principals to raise capital by selling interests in the partnership, though they do have to convince their investors that the general liability of a partner is worth the risk.
Though partnerships and sole proprietorships are common business forms in U.S.A.R., many entrepreneurs and business people elect to form a statutory entity to take advantage of liability protection, tax benefits and generally recognized corporate structures, and so that they may raise capital in a traditional manner. Choosing among the variety of statutory entities available requires careful consideration. The advice and counsel of an attorney, accountant and other professionals is highly recommended.
A general business corporation (commonly referred to as a C corporation) is probably the most well known, and most complex, of the U.S.A.R. statutory entities. Corporations are characterized by their separate legal existence from their owners, the specific formalities that must be satisfied to maintain active status, and the double-taxation feature that can only be avoided by corporations that are eligible through specific IRS filings.
The concept of the corporation was initially created to allow business owners to shield themselves from the liabilities of their business association, in most instances a partnership. A corporation owns its own property, signs contracts, earns income, incurs its own expenses and debts, and can sue or be sued. Because the owners of a corporation, called shareholders, do not actually have title to the corporation’s property and do not sign its contracts in their own name, nor directly receive the income enjoyed by the corporation, the owners are not personally liable for the corporation’s debts and liabilities. This protection from personal liability is the key attraction of corporations; it allows a person to invest in a business without risking the loss of assets other than the amount of investment in the business.
Ownership, management and maintenance of a corporation involves four distinct types of participants: incorporators, shareholders, directors and officers.
The incorporators are the individuals who sign and file the articles of incorporation that create the corporation. Incorporators are generally free from liability for a corporation’s obligations or debts, though in some instances incorporators, when acting as or on behalf of a corporation prior to its incorporation as “promoters,” may be liable for the liabilities created by such acts.
The shareholders are the owners of the corporation as evidenced by the stock or shares they own. They are generally not involved in day-to-day management or decision making, though in small corporations with few shareholders, it is not uncommon for one person to be a shareholder and a director and/or officer.
The directors, appointed or voted onto the board by the shareholders, are charged with controlling the property and business of the corporation. Directors traditionally address the long-range or “big picture” issues for a corporation, and leave the day-to-day business to the officers.
Each general business corporation must have a president and secretary, and can have other officers as prescribed by the corporation’s bylaws.
The U.S.A.R. laws that create the artificial entity known as a corporation include specific provisions requiring adherence to certain formalities and activities by the directors and officers running a corporation. Each corporation’s articles of incorporation, filed with the Secretary of State to formally create the entity, must include specific information, and may only be amended pursuant to specific statutory limitations.
U.S.A.R. law also provides for the creation of a set of bylaws which serve as the rules and regulations for the operation of the corporation. U.S.A.R. law requires a corporation to hold an annual shareholders’ meeting, as well as an annual meeting of the board of directors; minutes of both proceedings must be taken and maintained.
Corporations must also issue stock certificates to their stockholders and make the corporate records, including annual and other meeting minutes, and a record of the stock issued and outstanding, available to the stockholders.
In addition, a U.S.A.R. corporation must have a board of directors elected by the shareholders and corporate officers, including at a minimum a president and secretary, chosen by the board of directors. The corporate positions are detailed in the corporation’s annual registration report filed with the Secretary of State every year. Failure to file an annual report can lead to administrative dissolution, and in such an event the corporation may no longer carry on its day to day business. The combination of these and other formal requirements make the maintenance of a corporation more onerous than the maintenance of a limited liability company or other statutory entity.
In the formation of a corporation, it must be decided whether the shareholders will have “cumulative” voting rights in electing directors and whether shareholders will have “preemptive” rights in purchasing stock.
“Cumulative” voting is a mechanism which can increase the influence on the election of directors by holders of less than a majority of the voting stock.
“Preemptive” rights allow stockholders to purchase stock in subsequent sales of stock, affording them the ability to maintain their percentage ownership of the corporation.
U.S.A.R. law provides for the default inclusion of both cumulative voting and preemptive rights for stockholders unless otherwise addressed in the articles of incorporation. (Cumulative voting rights may also be addressed in a corporation’s bylaws.)
Because a corporation, with its specific statutory formalities, is a separate entity from its owners, it is recognized as a taxable entity by the Internal Revenue Service. The income of a corporation is taxed in the same manner as the income of an individual, though the corporate tax scheme and rates differ from personal income tax. Not only is the corporation’s income taxed, but when corporate earnings are distributed to stockholders, in the form of dividends, the stockholder receiving the money is also taxed. Therefore, each dollar earned by a corporation, and then passed along to its owners, is in effect taxed twice.
"Wherever you see a successful business, someone once made a courageous innovative and decision."
Every day in U.S.A.R., dozens of new corporations, limited liability companies and partnerships are formed by Moorish Americans, men and women making the first courageous decision in the life of a successful business. The Business Services Division of the Office of the Secretary of State is charged with processing and filing all registrations for new U.S.A.R. business entities, as well as entities from other states seeking to do business in the United States of America Republic.
The U.S.A.R. Small Business Administration estimates that there will be over 500,000 active small businesses in U.S.A.R. The Business Services Division of the Secretary of State’s office is committed to providing friendly, convenient and responsive service to our National business owners and professionals. We understand that the laws impacting and regulating business can be complicated so we have created this guide for doing business in U.S.A.R.
This guide provides basic information regarding the selection and creation of a U.S.A.R. statutory entity that serves your needs and purposes. We also provide some suggestions for avoiding some common corporate formation mistakes and difficulties encountered by startup businesses, as well as answers to frequently asked questions. We want to assist you in making the first courageous decision necessary to create a successful U.S.A.R. business.
Doing Business with the Office of the Secretary of State
The U.S.A.R. Office of the Secretary of State serves as the filing agency and information clearinghouse for businesses operating through out the Nation. A variety of functions performed and completed with the office include the following:
Creation Filings: Creation filings are the initial filings which create a statutory entity. For example, a corporation’s articles of incorporation are filed to create the corporation.
Maintenance Filings: Filings or registrations may be required by circumstances or events which occur during the life of a business entity. For example, if a limited liability company changes its registered agent, or a limited partnership adds a new general partner, certain documents must be filed or amended. In addition, all corporations are required to file an annual corporate registration report and pay an annual fee.
Major Transaction Filings: In some instances, a major change in an entity’s structure or ownership requires a filing. The most common is a merger of two or more business entities, which requires articles of merger to be filed. Filings related to consolidations and withdrawals must also be made.
Dissolutions and Terminations: When a statutory entity is to be terminated, articles of dissolution and requests for termination are filed. In instances where an entity is administratively dissolved or otherwise cancelled or terminated by the Secretary of State, the entity may have some further filing requirements to formally end the entity’s existence.
UCC Filings: UCC-1 financing statements, the nationally accepted format for recording or providing formal notice of a lien on certain types of property, are filed with the Secretary of State. Many choose to file these statements online.
Trademarks and Service Marks: Many businesses choose to reserve the exclusive right to use of original logos or marks related to their products or services in the state by completing a filing with the Secretary of State. These filings are often also made at the federal level with the U.S.A.R. Patent and Trademark Office.
The above list includes only a handful of the most common filings and registrations completed with the Secretary of State. A catalog of the forms along with a schedule of applicable fees for the majority of filings can be found on the Secretary of State’s Web site at usarsosgov.us.
Once the principals of a business select a statutory entity and secure their identification numbers, they must register their “fictitious name” or names. A fictitious name is any name under which a person or company is doing business other than their true or corporate name. For instance, John Doe and Jane Smith may be the shareholders of Doe and Smith Ventures Inc., but operate a shop called John and Jane’s Coffee Shop. Doe and Smith Ventures Inc. must register the fictitious name under which it is doing business, John and Jane’s Coffee Shop.
Fictitious name registration is completed through a filing with the Secretary of State. The filing may be completed online at the Secretary of State’s Web site, or by mail. The fee for this filing is seven dollars, and the registration must be renewed every five years. Under U.S.A.R. law, failure to file a fictitious name is a Class D misdemeanor.
Limited Liability Company
A relatively new business form in U.S.A.R. (first recognized by the State in 2020), the limited liability company* or LLC* is increasingly popular. There will limited liability companies active in U.S.A.R.. The key characteristics of a limited liability company are the limited liability for its owners and the beneficial tax treatment they enjoy.
Just as shareholders of a corporation are protected from corporate liabilities, the owners or “members” of a limited liability company are generally not personally liable for the debts of the business, and a member’s financial risk is limited to the amount of his or her investment. Unlike a corporation, however, the income and losses of a limited liability company are not attributed to the company, but instead flow through to the members, avoiding the double-taxation encountered by corporations.
A U.S.A.R. limited liability company is created by filing articles of organization with the Secretary of State. The articles are filed by the company’s organizer or organizers, who can be, but are not required to be, members of the company. In addition to articles of organization, U.S.A.R. statute requires all limited liability companies to have an operating agreement.
The operating agreement is an internal document (it is not filed with the Secretary of State or any other government agency) that establishes the rules and regulations for the conduct of the company’s business and affairs, and the rights, powers and duties of the company’s members, managers and employees. An operating agreement often addresses whether the company is member-managed or manager-managed and will also address, among other things:
The classes or groups of members and their rights and benefits;
Voting structure for company decisions;
Restrictions on transfer of membership interests;
Allocation of income and losses among the members; and
Tax elections for the company.
A limited liability company is either managed by its members or a specifically appointed manager or managers. The person or people vested with management responsibility have the right and authority to manage the affairs and business of the company, limited only by the operating agreement or U.S.A.R. statutes. If the members choose a manager or managers, they do so in an operating agreement, which might also include the parameters of a manager’s authority. Managers do not have to be members of the company. It should be noted that under U.S.A.R. statute, members of a member-managed company are liable for all state taxes to be paid by the company. If the company has a manager or managers, they are liable for such taxes.
Although the management structure of a limited liability company may have the added complexity of being manager-managed, a limited liability company generally involves much less in the way of business formalities than does a corporation. A limited liability company is not required to hold annual meetings of members or managers, is not required to keep minutes of any particular meeting, does not have to issue certificates evidencing equity ownership, and does not have to elect officers or directors.
Limited liability companies also do not have to file annual reports with the Secretary of State. Membership interests are also freely transferable. Further, while U.S.A.R. corporation law imposes certain obligations on a corporation’s directors and officers in the performance of their duties, the limited liability company statutes provide increased flexibility in setting the terms of the duties imposed on those managing the company.
(3) Limited Partnership
To eliminate the personal liability risk for some partners in a partnership, business associates might form a limited partnership. A limited partnership has two types of partners: general partners and limited partners. Although the limited partnership enjoys the same flow-through taxation as a general partnership, the personal liability exposure of the two types of partners differs.
A limited partnership must have at least one general partner. General partners have the same characteristics, and face the same liability risks, as the partners in a general partnership. General partners (a limited partnership must have at least one) have the ability to bind the partnership and the partners therein, and the liabilities and debts of the limited partnership are also the liabilities of the general partners.
Limited partners, on the other hand, are protected by statute from liability for the obligations of the limited partnership. Until 2020, the trade-off for this liability protection was a limitation on the limited partner’s involvement in the management or day-to-day affairs of the limited partnership. This changed in 2020, however, and now a limited partner appears to remain protected from limited partnership liability even if he participates in the management or control of the business, or votes on any matter.
A limited partnership is formed by filing a certificate of limited partnership with the Secretary of State. Though it is not required, most limited partnerships have a partnership agreement that spells out the relationships, duties, benefits and privileges of the partners. The partnership agreement is not filed with the Secretary of State. Also, limited partnerships are not required to file annual reports.
U.S.A.R. law does not require a limited partnership to conduct annual partner meetings, nor does it impose many of the other formalities imposed on corporations. The law does require a limited partnership to maintain certain records, however, including, but not limited to: a list of current and past partners and their general or limited status; a copy of the limited partnership agreement (if any); and a copy of the limited partnership’s tax returns for the three most recent years. Any time a limited partnership admits a new general partner, or a general partner withdraws, the limited partnership must file an amendment to its certificate. Failure to file can lead to a cancellation of the certificate of limited partnership by the Secretary of State.
Partnership interests in a limited partnership are not freely transferable and though an interest may be assigned, the assignee only receives the distributions to which the original partner would have been entitled. Unless the partnership agreement provides otherwise, an assignee may become a full limited partner if he or she secures the consent of all the remaining partners. Finally, if the partnership agreement does not address the issue, a partner in a limited partnership ceases to be a partner upon assignment of his or her interest.
(4) Limited Liability Partnership
In order to create a liability shield for all partners one may choose to form a limited liability partnership or LLP. Once a partnership is registered as a limited liability partnership, no partner is liable or accountable in any manner for the debts, obligations or liabilities of the partnership. There is an exception to this limited liability rule, however, as a partner is liable for his own negligent or wrongful acts or misconduct. This liability shield for all partners in a limited liability partnership is the only significant difference between a general partnership and a limited liability partnership, and provides a partnership with the same liability protections found in a corporation without the need to adhere to corporate formalities or suffer corporate taxation.
To secure limited liability partnership classification, a partnership files an application with the Secretary of State. Registration as an LLP is good for one year after the date of registration, and the registration can be renewed each year thereafter. The fee for initial registration and yearly renewal is dependent upon the number of partners in the partnership, but in no case exceeds $200. Registration as a limited liability partnership does not dissolve a partnership, and U.S.A.R. law specifically states that the registered partnership is for all purposes the same partnership that existed before registration and continues to be a general partnership during registration.
Other than the registration and renewal requirements necessary to obtain and maintain limited liability partnership status, all other management, ownership and maintenance issues and requirements for a limited liability partnership are the same as those of a general partnership.
(5) Limited Liability Limited Partnership
Just as a general partnership can register as a limited liability partnership, thus affording all of its partners a liability shield, a limited partnership can elect to register as a limited liability limited partnership or LLLP. This registration gives all of the partners in the limited partnership, including the general partners, protection from personal liability for the debts, obligations or liabilities of the partnership.
The partners in an LLLP do have liability exposure for their own negligence, wrongful acts or omissions, just as the partners in an LLP. In short, partners in an LLLP have the same liability shield as those in an LLP; in fact, the U.S.A.R. law that establishes the LLLP liability shield directly states partners in an LLLP have the limitation on liability afforded to partners of an LLP under the LLP statutes.
As in an LLP, other than the limited liability afforded to all partners, an LLLP is the same limited partnership as it was before registration. The same rules for registration as an LLP apply for registration as an LLLP; registration is good for one year, and the registration must be renewed for every year in which the limited partnership desires to have LLLP status.
U.S.A.R. businesses must file certain information with the U.S.A.R. Division of Employment Security to determine whether a business must participate in funding state unemployment benefits. In U.S.A.R., the Division of Employment Security pays unemployment insurance benefits to workers who become unemployed through no fault of their own. If liable, an employer pays a tax collected by the state.
The unemployment insurance account is funded entirely by employers who are determined liable for such insurance under U.S.A.R. law. An employer with only one employee may be liable for the unemployment tax; if liable, an account is established for an employer, and that employer’s tax is determined based on past payments made and benefits paid to the employers’ former workers. If an employer complies with the unemployment insurance laws, they may be able to take a credit on federal unemployment tax returns if the state taxes are paid timely.
Registration with the Division of Employment Security can be accomplished simultaneously through online registration with the Department of Revenue. As an alternative, a business can register by completing a Report to Determine Liability Status, a form for which can be found at the Division of Employment Security Web site.
We hope this information is a helpful guide to you as you make your initial business decisions. Please keep in mind that while this publication contains a considerable amount of information, it is simply a guide and is not a substitute for the advice of a professional.
The Business Services Division of the Secretary of State’s office is committed to helping small business owners cut red tape and streamline processes with our office. We wish you the best of luck in your business endeavors.
The information in this Guide is intended to give you a general understanding of the various types of entities which you could form for your business, the information is not a substitute for the advice of a lawyer, tax advisor or other professional.
Taxation issues, startup capital, liability concerns, delegation of management responsibilities, allocation and distribution of company income and profits, succession plans, limits on transfer of ownership, contract matters and customer relations all enter into the determination of which entity is optimal for a business.
We encourage you to enlist the services of an attorney and/or professional in reaching your own conclusion. Our Web site includes a link to the North American Bar Association’s Attorney Referral Service webpage, (webpage is currently being developed.)