How to Pick the Right Entity for Your Business

November 20, 2020
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Starting your own business can be both challenging and rewarding. You want to make sure you get off on the right foot by choosing the type of entity that’s right for you and your business. To help you make the best possible choice, here are some factors to consider along with which business entity might best serve you.

What is a Business Entity?

A business entity is an organization that will conduct business. An alternate name to a business entity is a business structure.

Depending on the business entity chosen, the following aspects of your business can vary: 

  • Asset protection 
  • Liability protection
  • Taxes (including double taxation and other taxes)

What are the Types of Business Entities?

There are multiple business entities that you can select from:

  • Sole proprietorship 
  • Partnership
  • LLC
  • S-Corp
  • C-Corp

A description of each business entity, its requirements, and what each business entity offers follows below.

Start Immediately: Sole Proprietorship

sole proprietorship is the easiest business entity to form. As a sole proprietor, there’s no difference between you and your small business. In fact, for liability purposes, they are the same.

Once you start a sole proprietorship, you’ll be able to conduct business immediately. While it isn’t a requirement, you may want to keep your business expenses separate from your personal expenses. You can do so by making a sole proprietorship bank account.

To form a sole proprietorship, you’ll need:

  • DBA or Trade Name 
  • Employer Identification Name (EIN)
  • License or permit
  • Registration
  • Sales tax and use tax permit

DBA is an acronym for “doing business as.” This is the name you’ll use to register your business within your state. 

You must ensure that the name that you intend to use is available. Some states won’t allow duplicate names or names that may cause confusion, so it is best to search databases. 

Depending on where you’ll operate your sole-proprietorship, you may have to certify your small business name every year or every two years. 

Sole proprietorships may need the following licenses to operate in their state: 

  • Federal License (depends on the industry)
  • Local and state licenses (depends on the industry)
  • Occupational License (may apply if your business is a profession or trade)
  • Operational License (may apply if you received a TIN for your sole proprietorship)
  • Permits
  • Sales Tax Permits (depends on the industry)

To file taxes as a sole proprietor, you’ll use a Form 1040, a U.S. Individual Income Tax Return, and a Schedule C, Profit or Loss From Business. 

Work with Others: Partnership

partnership is a business entity with at least two people who agree to operate a business together. Members of a partnership are partners that are either general or limited: 

  • General partners are active in the management and operation of the partnership
  • Limited partners act as investors in the partnership and aren’t in the business’s management or operation 

Each partner is only liable for up to the amount invested in the partnership. There are different partnerships, each with differing levels of liability.

There are three partnerships that you can select from:

  • General partnership 
  • Limited liability partnership
  • Limited partnership

In general partnerships, partners involved will have unlimited liability. This means that if their partnership experiences legal trouble, both business assets and personal assets are at risk.

 Limited partnerships have at least two partners: 

  • One or more partners will be a general partner who will operate with unlimited liability. 
  • One or more partners will be a limited partner, without liability.

Members in a limited partnership can also have limited liability. However, this applies only to the limited partners. Any of their earnings above the amount invested in the partnership isn’t at risk.

Limited liability partnerships have at least two partners: 

  • All partners are general partners who will operate the partnership
  • All partners in a limited liability partnership will share liability

As with limited partnerships, liability in a limited liability partnership can’t exceed the amount used as an investment in the partnership.

To form a partnership, you’ll need:

  • Business agreement 
  • DBA or Trade Name 
  • Employer Identification (EIN)
  • Licensing 
  • Sales tax and use tax permit (if applicable)

To form a partnership, you’ll work with your state’s Secretary of State. You’ll need your partnership agreement completed, which determines your: 

  • Name of the partnership
  • Principal office 
  • Length of the partnership
  • Purpose of the partnership
  • Types of partners in the partnership
  • Governing law (this is usually state law; you’ll make this definition as broad as possible)

Members of partnerships will use Form 1065, individually, for tax purposes. This Form, the U.S. Return of Partnership of Income, will report partners’ credits, gains, income, or losses. 

Additionally, partners will use Schedule K-1 to report their share of the partnership’s credits, deductions, and income. 

Liability Worries: LLC

An LLC, or a limited liability company, is another business entity that you can select. Some qualities that are unique to LLCs are: 

  • Member composition 
    • Members can include corporations, foreign entities, individuals, and other LLCs. 
  • No maximum number of members
  • Single-member LLC option, which is available in most states
  • The ability to file taxes as a corporation or partnership

To form an LLC, you’ll need the following:

  • Annual and initial reports 
  • Articles of Organization (the exact requirements will vary by state) 
  • Business name 
  • Licensing and permits (this will vary by industry and by state)
  • Operating Agreement (not a requirement, but it is helpful)
  • Publish a notice in the local newspaper (this may vary by state)
  • Registered agent
  • Tax registrations

The business name that you’ll use for your LLC must be unique. It must not be an exact duplicate of an LLC in your state. Another requirement of LLCs is a variant of “LLC” in the name: “limited liability” or “LLC” are both acceptable.

In most states, you’ll need a registered agent to form your LLC. This agent will be the person that collects your federal and state documents. The registered agent must live in the state that your LLC will operate. 

An Operating Agreement isn’t a requirement for single-member LLCs. It’s also not a requirement in many states. However, Operating Agreements can still be helpful. More information about Operating Agreements is available here.

Taxes for LLCs are simple: 

  • Single-member LLCs will pay taxes as a sole-proprietorship. (Form 1040 and Schedule C)
  • Multiple-member LLCs will pay taxes as a partnership. (Form 1065 and Schedule K-1)

Attract Investors: S-Corp

The qualifications for businesses to become S-Corps are straightforward. For your business to become an S-Corp, it must: 

  • Be a domestic corporation 
  • Have no more than 100 members
  • Have only allowable shareholders, including individuals, certain trusts, and estates 
  • Have only one class of stock

Corporations, non-resident shareholders, or individuals in a partnership don’t qualify for S-Corp status. Certain financial institutions, domestic, international sales corporations, and insurance companies don’t qualify for S-Corp status.

The following documents are the documents that you’ll need to form your S-Corp:

  • Articles of Incorporation 
  • Certificate of Incorporation 
  • Corporate Bylaws
  • Form 2253

The Articles of Incorporation for your S-Corp will require the: 

  • Name of corporation
  • Registered agent’s name and address 
  • Type of corporation structure 
  • Names and addresses of the initial board of directors 
  • Number and type of authorized share 
  • Duration of the corporation 
  • Name, signature, and address of the person forming corporation (referred to as the incorporator)

Corporate bylaws are the structures that determine how your S-Corp will operate. Your S-Corp’s corporate bylaws should contain an overview of your corporation’s: 

  • Board member responsibilities
  • Committee formation
  • Election of directors

You’ll need to file the certificate of incorporation with your Secretary of State or a similar state department if applicable. Upon doing so, it will designate that your company is a corporation within your state. 

The final step to form your S-Corp is to file Form 2553. This form must contain every shareholder’s signature, and it must be dated by an officer who can sign on behalf of the corporation.  

Taxes for S-Corps are more rigid than other business entities. Only C-Corps or LLCs can become an S-Corp. For C-Corps businesses electing to become S-Corps, you must complete Form 1120-S. You must also have signatures from every shareholder to have it accepted by the IRS. 

For LLCs electing to become S-Corps, you’ll need to file a Form 1120-S. Each owner of an LLC must fill out a Schedule K-1 for the Form 1120-S. This form will report a shareholder’s credits, deductions, and income. 

Unlimited Growth Opportunity: C-Corp

Out of all of the business entities, C-Corps offers the most opportunity for growth. Members, called shareholders, can exchange money, property, or both for their corporation’s capital stock. 

C-Corps are business entities that are separate from shareholders. There are no limits to the number of shareholders that can join. 

The following documents are the documents that you’ll need to form your C-Corp: 

  • Articles of Incorporation
  • Board of Directors
  • Business name
  • Licenses and permits
  • Stock (either common stock or preferred stock)

Articles of Incorporation are documents that you’ll need to form your C-Corp. You’ll need the following:

  • Corporation name 
  • Duration of the corporation (either for a fixed period or perpetual)
  • Name and address of the incorporator
  • Name and address of the initial directors (the board of directors)
  • Purposes for the corporation (which will vary by state) 
  • The name and address of the registered agent 
  • Type of corporation 

Shareholders will elect the Corporation’s Board of Directors. Your Corporation’s Board of Directors are the individuals that will be in charge of operating the corporation. If your C-Corp is new, the CEO or President can elect their shareholders.

Many states have name requirements for C-Corps. The business name must be available and unique. You’ll also add a variant of “corporation,” either “Corp” or “Corporation,” at the end of the C-Corp name.

Finally, C-Corps offer shareholders to invest in either common stock or preferred stock. There are differences which depend on shareholders: 

  • Common shareholders have voting rights within the corporation, but they receive company assets after preferred shareholders.
  • Preferred shareholders don’t have voting rights, but they can receive their dividends sooner than common shareholders.

If you choose a C-Corp, you should know about double taxation. Double taxation occurs when the corporation pays a federal tax, and shareholders pay an individual tax for the corporation’s profits. Only C-Corps and their shareholders are subject to double taxation.

Which Business Entity is Best?

The business entity that is best for you will depend on your business requirements. There are factors, pros, and cons to each of the business entities you should consider before choosing your business entity.

All business entities except sole proprietorships require you to apply for an Employer Identification Number or EIN. 

Sole proprietors can use their social security number or apply for an EIN if they want. A sole proprietorship without employees won’t need an EIN. 

An EIN is a unique, nine-digit number issued by the IRS to identify your business, and it is free to obtain. 

Work with a Professional

The business entity that you select impacts how you will operate your business and what tax laws you’ll follow. To save time and money in the long run, work with a professional at 1-800Accountant to get your business started on the right foot. 

This post is to be used for informational purposes only and does not constitute legal, business, or tax advice. Each person should consult his or her own attorney, business advisor, or tax advisor with respect to matters referenced in this post. 1-800Accountant assumes no liability for actions taken in reliance upon the information contained herein.