FORMS OF BUSINESS OWNERSHIP
When starting a home-based business, you must choose the best form of organization and ownership
for you. The form of organization used depends on the type of business, how many owners or
investors are involved, and how tax and liability issues will be handled.
The sole proprietorship form usually is advantageous to a new business because of its ease of
organization. The business owner is responsible for all financing, management decisions, and
liabilities of the business.
The owner is in direct control (you are the boss).
There are low start-up (organizational) costs.
It's the form with the least government regulation.
This form offers ease of formation and a simple structure.
There is no double taxation.
Business losses can offset personal income (for tax purposes).
The owner receives all profits.
The owner has total (unlimited) personal liability.
The business has limited financial resources (capital).
There is a lack of continuity if the owner is disabled or dies.
The owner may have limited managerial expertise.
All profit is taxed as personal income.
The business can expand only with after-tax dollars.
Most home-based businesses use the sole proprietorship form. It is simple, inexpensive, and requires
less complex record keeping methods than the other forms of ownership.
A partnership provides the opportunity to pool the capital and management resources of two or more
individuals to conduct business. Two types of partnerships are the general and the limited.
A general partnership is fairly easy to establish. A written partnership agreement drawn up by an
attorney should be used to clarify business arrangements and to avoid misunderstandings. The
general partnership agreement should include the following: a list of the rights and responsibilities of
each partner and their heirs; the management and continuity arrangements for the business in the
event of the death or disability of one of the partners; the profit and loss distribution plan; and any
special conditions or arrangements that may affect any of the partners through operation of the
business. When signed by all partners, the agreement is an enforceable contract.
Additional personal resources (financial and managerial)
The right to select partners
Low start-up (organizational) costs
Limited outside regulation
No double taxation
Unlimited liability for partnership obligations
Lack of continuity when one partner dies or is disabled
Sharing of profits
All profits taxed as personal income
Difficult to raise additional capital
Hard to find suitable partners
Divided authority (limited decision making)
A limited partnership permits investor involvement with liability limited to the amount of the investment
or the amount agreed to in the limited partnership agreement. The limited partnership must include at
least one general partner who has general liability for the debts of the limited partnership. The general
partner usually manages the business. The limited partner usually exercises no control over the
business of the partnership but is merely an investor.
The general partner maintains control of the business.
The limited partner can invest with a limit on personal liability.
It is an easy way to secure capital.
The business is not taxed directly.
This structure is complex to organize.
The limited partner has no control over the business.
The general partner has unlimited personal liability for the obligations of the business.
There is a lack of continuity in the event of the death or disability of the general partner.
A "C" corporation is a separate legal entity from its owners, the shareholders. It can enter into
contracts, can be liable for any obligations, and must pay taxes on income as well as dividends
distributed to shareholders. A corporation attracts capital investment funds by selling shares of stock
in the company to investors or by trading stocks for assets. Generally, stockholders are not liable for
claims in excess of the current value of their shares. Corporate officers may be required personally to
guarantee bank notes or loans; they are then personally liable for the obligation. Other creditors
generally can lay claim only to the assets of the corporation.
Limited personal liability
Separate legal entity
Easier to raise capital
Most expensive to organize
Complex organization and management
Extensive record keeping necessary
One corporate form that home-basers may consider is the "S" corporation (Subchapter S
Corporation). The "S" corporate structure should be considered for the following situations:
The owners expect operating losses.
Large dividends are anticipated.
The owner's individual tax rates are lower than the corporate tax rates.
There are 75 or fewer stockholders.
The corporation has only one class of stocks.
The "S" corporate structure allows a tax burden shift to shareholders. The election is made formally
on Form 2553 filed with the Internal Revenue Service. The election can be made at any time during
the previous year or up to March 15 of the year of election. By April 15, the "S" corporation also must
file an informational return allocating profits or losses to shareholders.
Before deciding on a form of business ownership, consult an attorney and a certified public
accountant (CPA). Their expertise can help you avoid making costly mistakes. The final decision
should be based on what is best for your individual situation and business needs.
Limited Liability Company (LLC)
A limited liability company (LLC) is a business entity created by statute. It has some characteristics of
a partnership and some characteristics of a corporation. A LLC has the tax advantages of a
partnership and the limited liability advantages of a corporation. Properly structured, it is taxed as a
partnership or an "S" corporation. If the LLC is not properly structured, it is taxed as a "C" corporation.
Forming a LLC is more complex than forming a partnership, but it is less complex than forming and
operating a corporation. Forming a LLC is a formal process, contact the Mississippi Secretary of State
at 601/359-1633. LLC's are a relatively new form of business in Mississippi. Legislation creating this
form of business was passed in 1994. It should be noted that the lack of precedent adds some
uncertainty to adopting this form of business. Experts predict however, that the LLC will quickly
become the form of choice for many small businesses.
Table Comparing the Different Forms of Business
Type of Sole Proprietorship Partnerships Corporations Limited Liability
Business General Limited C Corp S Corp Company
Definition A business owned and Two or more people One or more partners An organization An organization A business entity created
operated by one who jointly own or have limited liability and formed under state structured like a by statute. The owners are
person for profit. operate a business for no rights of or federal law. An corporation but taxed called members. It is taxed
profit. management. artificial entity like a partnership. like a partnership or an s
separate from its corp. It has limited liability
owners. like corporations.
Ease of Easiest form of Easy to set up and File a Certificate of File articles of Must meet all criteria File articles of organization
Formation business to set up. If operate. A written Limited Partnership with incorporation and to file as an S with the Secretary of State.
necessary, acquire partnership agreement the Secretary of State. other required corporation. Must file Adopt operating
licenses and permits, is highly recommended. Name must show that reports with the timely election with agreement, and file
register fictitious name, Must acquire an business is a limited Secretary of State. the IRS (within 21/2 necessary reports with
and obtain taxpayer Employer ID number. If partnership. Must have Prepare bylaws and months of first Secretary of State. The
identification. necessary, register written agreement, and follow corporate taxable year). name must show it is
fictitious name. must keep certain formalities. limited liability company.
Period of Terminates at will or Terminates by agreement, or by death or Continues until formal dissolution. Most May terminate by
Existence on the death of the withdrawal of partner, unless there is a stable form of business. Not affected by agreement, or withdrawal of
owner. partnership agreement to the contrary. death or disaffiliation of shareholder. a member, depending upon
Taxes Profits are taxed once. Profits are taxed once. Each partner reports his or Profits are subject to Profits are taxed If the LLC is structured
Profit and loss are her share of the profit and loss on his or her double taxation, once. Each properly, each member
reported on the individual state and federal income tax returns. once at the shareholder reports reports his or her share of
owner's individual state Partnership files an information return. corporate level, and his or her share of the profit and loss on his or
and federal income tax again at the profit and loss on her individual income tax
returns. shareholder level. individual income tax returns. It is taxed like a
returns. S corp does partnership or an S corp. If
not pay tax, with the LLC is not structured
some exceptions. properly, it is taxed like a C
Liability The owner's personal Each partner's personal General partners' Limited to corporate assets, except: Similar to rules for
assets are at risk. assets are at risk. personal assets are at corporations.
risk. A limited partner is
liable only to the extent 1. Personally guaranteed business debts;
of his or her investment.
2. Personal negligence or fault; or
3. Corporate form is found to be a sham.
Dissolution Easiest form of Pay debts, taxes, and Pay debts, taxes, and Obtain shareholder approval to dissolve. Pay debts, taxes, and
business to dissolve. claims against claims against business. File statement of intent to dissolve with theclaims against business.
Pay debts, taxes, and business. Settle Settle partnership Secretary of State. Pay debts, taxes, and Distribute remaining assets
claims against partnership accounts. accounts. File claims against business. Distribute to members. File articles of
business. cancellation of certificate corporate assets to shareholders. dissolution with the
with the Secretary of Gain on distribution Gain on distribution of Secretary of State.
State. of assets is subject assets is taxed once,
to double taxation. with some
Prepared by Carol A. Schwab, J.D., LL.M., a Member of the North Carolina State Bar and a Family Resource
Management Specialist for the North Carolina Cooperative Extension Service, North Carolina State University,
Raleigh, North Carolina.
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