If you have a business or are thinking about starting one, you’ll have to decide how you want to structure it. Your answer may differ depending on your particular goals—like asset protection, tax efficiency, or ease of transitioning your business to family members.
Below is a summary of common business entities, as well as the primary benefits and drawbacks of each structure.
This is the simplest way to structure a business. A sole proprietorship is not a legal entity. It is an unincorporated structure, owned by an individual or a married couple (the sole proprietor), and does not require any formal documentation to set up. The sole proprietor and the sole proprietorship are treated as one and the same – there is no legal distinction between the business owner and the business. Once the sole proprietor registers the business with the relevant state agencies and obtains any necessary licenses, the business is ready to operate. Many people use this structure because it is easy to implement. The sole proprietor can mix personal assets with business assets.
For tax purposes, all of the income and losses of the business are reported on the sole proprietor’s personal income tax return. The sole proprietor may only need to add a few schedules each year to his or her return. The sole proprietor is also responsible for self-employment taxes.
One of the main drawbacks of a sole proprietorship is that it does not protect the sole proprietor’s personal assets from the business’s liabilities. As a result, if someone sues the business, the sole proprietor’s personal assets, like a house or car, are not protected.
Advantages
- Easy to implement
- Simple tax filings
Disadvantage
- Unlimited liability – owner’s personal assets are not protected
The LLC has become one of the most common entity structures as it is relatively simple and inexpensive to create; membership interests are easy to transfer to family members, trusts, other LLCs, or even buyers; and it provides limited liability for its members.
An LLC is owned by one or more members and managed by one or more managers. The members and the managers can be the same – but they don’t have to be. To create an LLC, you need to file a Certificate of Organization with the state in which it is located and sign an operating agreement, which serves as its by-laws.
As long as the LLC’s corporate formalities are followed, a member or manager’s personal assets should be protected from the LLC’s liabilities. However, single-member LLCs may provide reduced protection.
An LLC can elect to be taxed either as a corporation, with potential double income taxation as described later in this article, or it can be taxed as a partnership with pass-through income taxation – meaning the income tax liability passes through to the LLC members. This provides flexibility depending on the business’s circumstances. If an LLC only has one member, which can often be the case for small businesses or when the LLC holds a single asset, the LLC and the member are treated the same for income tax purposes. This means all of the income tax consequences flow through to the member, and the LLC does not have to file its own income tax return.
Advantages
- Limited liability
- Pass-through income taxation (under most circumstances)
- Ease of implementation and transfer
- Less paperwork than partnerships and corporations
Disadvantages
- Corporate formalities must be met to limit the liability of managers and members, though the formalities are less stringent than for corporations
- Requires engaging outside advisors to create
A limited partnership (LP) is a formal arrangement between one or more limited partners and a general partner. Limited partners are people who benefit financially from the business but do not get involved in or control its operations. A general partner manages the business day-to-day. The general partner often has a small economic interest in the business, but has unlimited liability.
To create an LP, the limited and general partners sign an LP agreement that says how the partnership will be managed. This agreement includes:
- A description of the permissible business activities
- How business decisions are made
- How distributions from the partnership will be made to the partners
- If and how partners will be allowed to leave the partnership
- How disputes are to be resolved
- What events will trigger the dissolution of the partnership
The partnership will need to file a Certificate of Limited Partnership with the state in which it is located and the states in which it is doing business, if they are different. It also must comply with other federal and state regulatory filings. This often requires an attorney and tax counsel.
Unlike sole proprietors, the limited partners in a partnership usually have limited liability, meaning their personal assets are more protected. If the partnership is involved in a lawsuit, the limited partners generally cannot be sued individually. General partners, however, are personally liable for any of the partnership’s obligations, and for this reason, many general partners are themselves structured as limited liability entities.
Business owners often structure their businesses as LPs to attract outside investors who wish to invest passively and protect their personal assets.
Like a sole proprietorship, an LP is not a taxpaying entity itself. The LP will file an annual partnership income tax return, and will then provide a schedule K-1 to each partner to pass through his or her share of the LP’s income, credits and deductions (similar to most LLCs). The partners will then include these items on their personal income tax returns at their individual rates.
Advantages
- Limited liability
- Pass-through taxation including the ability to take advantage of the §199A deduction for pass-through entities through 2025
Disadvantages
- Relatively complex structure
- Requires engaging outside advisors to create
A general partnership is another type of co-ownership but without any limited partners. Each general partner has the authority to run the partnership, which can add unnecessary complexity to a legal structure and business operations. Additionally, each general partner has unlimited personal liability on claims against the business. Few businesses are organized this way.
A C Corporation is owned by shareholders and managed by a board of directors and other officers. To create a C Corporation, the business must file articles of incorporation – documents that establish the existence of a corporation – with the state. The business then can issue any number of classes of stock needed for adequate capitalization (the amount of money a corporation needs to pay for operations and obligations). The board of directors will often establish the corporation’s bylaws, which govern how the corporation is run.
If you expect your business to go public, you may wish to structure it as a C Corporation.
C Corporations provide limited liability to their shareholders as long as the company adheres to the required corporate formalities, such as:
- Holding annual director and shareholder meetings
- Keeping appropriate records and meeting minutes
- Treating the C Corporation as a separate legal entity from the shareholders and board members personally
C Corporations may be allowed to take certain tax deductions that are not available to businesses with different structures.
If certain requirements are met, some C Corporation stock could be qualified small business stock, which provides tax benefits to shareholders when they sell their stock. C Corporations can set up employee stock ownership plans to provide a market for the owners’ private stock and to provide employees with a tax-efficient savings vehicle. While employee stock ownership plans can be created for other entities as well, their tax benefits are greatest when they are part of a C Corporation.
One of the main disadvantages of a C Corporation is that, unlike most other types of entities, it is a tax-paying entity and not a pass-through entity. This can cause income to be taxed twice: the C Corporation pays income tax on income generated by the business, and shareholders pay income tax on dividends they receive from the C Corporation. To understand the impact of double taxation, think about the amount of income and deductions you expect the business to generate and whether the business anticipates paying dividends regularly; this will help you decide whether or not the benefits of a C Corporation are undercut by the double taxation.
Advantages
- Limited liability
- Ability to attract investors for future public offering
- Possible qualification as small business stock
- Often lower corporate income tax rate
- Appropriate structure for taking a business public
- Ability to maximize tax benefits of ESOP structures
- Ability to have multiple classes of stock
Disadvantages
- Double taxation
- Complex structure requiring adherence to corporate formalities
- Requires engaging outside advisors to create
Business owners who want a formal corporate structure but do not want some of the complexities of a C Corporation can consider an S Corporation. An S Corporation is structured and operates in the same way as a C Corporation. It issues stock, is managed day-to-day by a board of directors and it provides limited liability to its shareholders. The “S” qualification is a result of a tax choice that the corporation files with the Internal Revenue Service, so long as certain requirements are met.
An S Corporation and its shareholders can enjoy many of the C Corporation benefits while taking advantage of pass-through income taxation rather than double taxation, one of the main benefits of the S election. Note that an S Corporation can jeopardize its S election under certain circumstances and become a C Corporation as a result (e.g., more than the permissible 100 shareholders, having an ineligible S Corporation shareholder like a partnership or non-resident alien, etc.).
Advantages
- Limited liability
- Pass-through income taxation
- Ability to attract investors
- Simpler than a C corporation
Disadvantages
- In order to make the S election, you are limited in the number and type of shareholders and can only have one class of stock, although you can have one additional class of stock with different or no voting rights
- Restrictions on the amount of passive income that can be generated
- Requires engaging outside advisors to create
- Not as tax advantageous as C corporations when setting up ESOPs
Note that many business entities have additional compliance requirements as part of the Corporate Transparency Act (CTA). You should speak with an attorney about which structure is the right one for you and your business, and your attorney or accountant can help guide you on CTA reporting. A J.P. Morgan professional can help create an investment strategy for your business.
