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What is Incorporation and How Does It Work?

One of the first decisions you have to make in creating an incorporation is the type of business you want to create. A sole proprietorship? A corporation? A limited liability company? This decision is important because the type of business you create determines the types of applications you will need to submit. You should also research liability implications for personal investments you make into your business, as well as the taxes you will need to pay. It is important to understand each business type and select the one that is best suited for your situation and objectives. Keep in mind that you may need to contact several federal agencies, as well as your state business entity registration office.

The first step in understanding how businesses can be set up comes with knowing that, even though they may all seem similar from the outside, not all businesses are structured identically. Even within the same industry, some owners might opt for one setup while another owner will decide that a different type of arrangement is more suitable. It all depends on the individual needs, preferences, and requirements of the potential business and the business owner. This article will give you a glimpse of how an Incorporation works and how a business owner can use this model to further his or her ventures.

How does Incorporation Work?

A business becomes incorporated when the company’s organizers file incorporation paperwork with the state. For example, corporations in Texas must file a certificate of formation with the Texas Secretary of State’s office, as a condition of its formation. Incorporating a business requires activities, such as selecting individuals to serve as directors, and creating a unique business name. In most cases, a fill-in the blank certificate of formation, also known as articles of incorporation, will be provided by the Secretary of State’s office where the corporation is organized. The fee to file a certificate of formation will vary from state to state.

When a business becomes incorporated, a separate and distinct legal entity is created. An incorporated business acts independently of its business owners. According to the Entrepreneur website, incorporating a business provides the company with most of the legal rights granted to an individual, with the exception of voting privileges. Incorporated businesses must hold shareholder and director meetings, and keep company minutes, as described on the Companies Incorporated website. In addition, corporations must keep accurate banking records that are separate from the personal funds of its owners. Furthermore, an incorporated business must file taxes and annual reports with the state where the company is organized. This new business entity – corporation or limited liability company (LLC) – transforms the way the business is seen through the eyes of the law and often has more credibility with potential customers, vendors, and employees.

When it comes to business taxes, owners of an incorporated business may pay taxes twice on the same corporate dollars, also known as double taxation. This occurs when the company pays business taxes on its earnings. If dividends are issued to shareholders of the corporation, the shareholder pays taxes on those dividends at their individual tax bracket. Dividends issued to shareholders of a corporation aren’t deductible and don’t reduce the corporation’s tax liability. Lastly, for company Stocks, unlike a sole proprietorship or a partnership, an incorporated business has the ability to issue stock to employees and investors. Corporations with unissued shares of stock can sell shares to raise money for the company. Because an incorporated business has limited liability protection, investors may be more likely to invest in a corporation in comparison to a sole proprietorship or partnership. Employee stock incentives may be used to attract talented individuals to work for the corporation.

In any case that the venture hits some financial hurdles, corporations normally file one of two different types of bankruptcy – Chapter 7 or Chapter 11. Alternatively, corporate creditors may force a corporation into bankruptcy. When a corporation enters Chapter 7 bankruptcy, the bankruptcy court appoints a trustee to oversee the liquidation of corporate assets. Assets are then distributed to external creditors according to their priority and the amount that they are owed. Shareholders are the lowest priority unless, for example, the corporation borrowed money from a shareholder. Unlike an individual debtor, the corporation receives no discharge of debt – it simply dissolves and ceases to exist after its assets are liquidated and distributed. On the other hand, when a corporation enters Chapter 11 bankruptcy, corporate representatives negotiate with a creditor’s committee for favorable payment terms, reduced interest rates and, sometimes, a reduction in the principal balance of its debts. The corporation must usually pay its outstanding debts within five years. Both the creditors and the corporation may submit payment plans to the bankruptcy court, but the court must approve it. Once the corporation complies with the settlement, it receives a discharge of any remaining debt.

The Incorporation Doctrine

The incorporation doctrine is a constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment, the Legal Information Institute explains. This means that state governments are held to the same standards as the Federal Government regarding certain constitutional rights. The Supreme Court could have used the Privileges and Immunities Clause of the Fourteenth Amendment to apply the Bill of Rights to the states. However, in the Slaughter-House Cases 83 US 36, the Supreme Court held that the Privileges and Immunities clause of the Fourteenth Amendment placed no restriction on the police powers of the state and it was intended to apply only to privileges and immunities of citizens of the United States and not the privileges and immunities of citizens of the individual states. This decision effectively put state laws beyond the review of the Supreme Court. To circumvent this, the Supreme Court began a process dubbed as “selective incorporation” by gradually applying selected provisions of the Bill of Rights to the states through the Fourteenth Amendment Due Process clause.

Selective and Offshore Incorporation

To give you a breakdown on what “selective incorporation,” it is a constitutional doctrine that ensures states cannot enact laws that take away the constitutional rights of American citizens that are enshrined in the Bill of Rights. Selective incorporation is not a law but has been established over time through court cases and rulings by the United States Supreme Court. In actuality, selective incorporation is the process that has evolved over the years, through court cases and rulings, used by the United States Supreme Court to ensure that the rights of the people are not violated by state laws or procedures. Moreover, according to Law Teacher, it does not consider all rights in the Bill of Rights fundamental not all rights in the Bill of Rights and some rights outside the Bill of Rights are fundamental. This approach rejects the totality of circumstances to decide whether phases of rights or particular portions of Instead if a right was fundamental, drafters incorporated it into the Fourteenth Amendment through the Due Process Clause and deemed applicable to the states and the federal government. At its heart, selective incorporation is about the ability of the federal government to limit the states’ lawmaking powers.

Meanwhile, Offshore incorporation is a corporation or limited liability company that has been formed outside of your country of residence. One is well advised to choose the country of incorporation wisely. The great thing, however, about having an offshore corporation company that has been established properly is that it will give you, the owner financial confidentiality. If one has an offshore bank account in one’s own name, the name of the account holder is easy to trace. Many people who have an offshore corporation have several companies. Having more than one offshore company allows funds to be transferred between companies that are free from government reporting. There is usually a significant reduction in paperwork because there may be no requirements by the government to report transfers of money between one foreign account and another.

Filing Articles of Incorporation

Starting your own business is a big step, and the legal issues involved can be confusing.  Thinking of a business idea is hard enough, but then there are forms to fill out and technicalities to deal with, especially if you’re structuring your company as a corporation. Here’s what you need to know about one of the first and most important steps of incorporating your business: filing your articles of incorporation.

The articles of incorporation sometimes called a certification of formation or a charter, is a set of documents filed with a government body to legally document the creation of a corporation. This type of document contains general information about the corporation, such as the business’s name and location.

Articles of incorporation can easily be confused with bylaws, which lay out the rules and regulations that govern a corporation and help establish the roles and duties of the company’s directors and officers. Articles of incorporation are also sometimes called a certification of formation or a charter. The articles of incorporation contain general information about a corporation, such as the name and location of the business. Bylaws, on the other hand, contain information about the rules and regulations that govern a corporation. In addition, corporate bylaws help to establish the roles and duties of the company’s directors and officers.

 Forms and Legal Documents

 The first step in the process is structuring a business as a corporation. The specific documents vary by state, but each will include a number of questions about the business and its owners. The forms are easily found online but don’t be alarmed if they are called something other than articles of incorporation.

Despite a state-by-state filing, the forms will all ask pretty much the same questions and will be in a fill-in-the-blank format. The most crucial information that is required will be corporate name, recipient of all legal notices and official mailings, the purpose of the business, the duration of the business, the incorporator, the directors, how many shares of stock can be issued, and how many classes of stock the corporation will be allowed to issue.

Articles of incorporation must be submitted to the secretary or department of state in order to establish a company as a corporate entity. Depending on the state of incorporation, articles of incorporation may be submitted in person to the secretary or department of state’s office, by mail or electronically to the secretary or department of state website. A corporation is not required to file the company’s bylaws with any government agency. Instead, corporations are required to maintain their bylaws at the company’s primary business location. Corporate bylaws are an internal document, establishing operating procedures for a corporation.

Legally, the answer is no. In fact, over 70 percent of U.S. businesses are owned by sole proprietors and operate successfully without incorporating. However, if you need liability protection to protect personal assets if a client sues you, potential tax savings (at a price), or a loan to grow your business in the future, then incorporation might benefit you.

Typically, if you only operate in one state, you should incorporate in that state. If you operate in multiple states, you should determine which state is the friendliest to corporations and incorporate in that state.  File your articles of incorporation in the state where you intend to incorporate – usually with the Secretary of State’s office and for a fee, depending on where you live. Check your state website for more information.

The primary benefit to business incorporation is limited liability. When you own a small business, you will invest a lot of money into not only getting it launched but in keeping it running smoothly as well. As the owner, you are responsible for any debts and losses your business may accumulate along the way. However, when you incorporate, you are typically only held responsible for the amount of money you personally invest. Your personal assets typically cannot be used to satisfy the debts and liabilities of your business.

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Hire Your Children To Save Taxes

Child labor is a subject that has a negative connotation in our society. For most people, it means depriving children of their childhood. It means forcing them to work when they should be at home watching TV, or playing in the fields.

But it is a different matter altogether if the child is employed by his or her parent’s company.

If you have a small business and you have children aged below 18 years old, it is highly recommended that you hire them as employees. It can be a very fulfilling experience to them. It can hasten their growth, develop a sense of pride and self-worth, and teach them to be more responsible.

Moreover, it can save your company thousands of dollars in taxes. It’s like hitting two birds with one stone—your children can be productive during their spare time and you andyour company can get to save a lot of money.

Hiring teen and young adults in a family owned business benefits both parents and the young ones. Parents get to save more as their businesses have lesser tax burden. Children, on the other hand, can be productive and get some extra money for their extracurricular and summertime activities.

Tax Benefits

There are several ways for your company to benefit from hiring your children as workers:

  1. The child’s salary is free from taxes.

You might know that the first $6,300 of income in a fiscal year is free from federal taxes. This is called the Standard Deduction. So if you hire a child as an employee of your firm, you’re basically keeping that amount in the family. Hire someone else and that $6,300 is taken out of you.

That money coming from your own pocket can be used by your son or daughter to buy a car, or go on a vacation. Even better, he can use it to support himself or his college education.

  1. The child’s salary will be tax deductible.

Let’s say that you are hiring your child with an annual pay of $6,300.  You can declare that amount as tax deductible from your business income.  The first $6,300 earned by a child working in his/her parent’s firm is not subject to tax. Yes, this means that your child’s earning will not only be subject to federal income tax tax but also state tax, FICA, or Medicare.

You, as the business owner, meanwhile, can declare that amount as fully deductible. This means that you will get a tax relief based on your child’s salary as an employee of your business.

For instance, your business is in the 35 percent tax bracket. You hire your 14-year old son to work in your office and help you with the filing of documents, or working  with the spreadsheets. For the year, he earns $6,300 in wages. He must also has no other sources of income.

You, as the business owner, stand to save $2,205 since the full amount of his wages will be deductible as compensation.

  1. No FICA taxes.

As mentioned earlier, your child’s salary isn’t subject to FICA tax. This means your firm won’t have to pay FICA taxes on your child’s wages.

However, there are certain requirements for your child’s salary to be exempt from this kind of tax:

  1. Your business is a sole proprietorship
  2. It is a husband-wife partnership
  3. It is a husband-wife LLC considered as husband-wife partnership for tax purposes
  4. It is a single member LLC treated as sole proprietorship for tax purposes

It should be noted that your child’s salary is not exempt from FICA taxes if your business is a corporation. FICA tax exemption is also not applied if the business is a partnership, or one or more partners are not parents of the child.

  1. Setting up retirement savings plan.

What most people don’t realize is that children under 18 can contribute to their own individual retirement account (IRA). This can be a great way for them to get a head start as far as saving and investing money is concerned.

Your child can contribute up to $5,500 to a traditional IRA. He can subtract the amount from their income for tax purposes. However, your child can’t make more contribution to what he earned in a year. So if he earned $5,000 in a year, the maximum IRA contribution he can make is $5,000.

  1. Shifting a parent’s higher taxed income to a child.

Since your child can save by a) having his income exempt from taxes and b) having the option to set up IRA on the income, you can then shift your higher taxed income to him.

Going back to our examples, your son makes $6,300 and then adds $5500 as a contribution to an IRA. Thus he has $11,800 shielded from taxes, and your business can write off that amount as a legit business expense that can reduce your gross income.

That’s the maximum amount that your child can make in a year sans tax. If you give him a higher pay than $6,300 in a year, the next $9,275 will only be taxed at a rate of 10%.

Thus, your son stands to have a tax of just $927.50 for the year on aggregate earnings of $21,075.

You’ll be wise enough to include that amount in your own income as you can incur a tax liability of $10,600. You can save up to $9,672 in taxes by doing so.

Guidelines

There are several things that you should know if you are to hire your kids as employees. Knowing these guidelines should keep the IRS from disallowing your company from claiming said tax exemptions:

  1. He/she must be a real employee.

Your children should be hired as bona fide employees. This means that they have work that is helpful and appropriate for your business. Typical jobs for children include routine office work such as typing jobs, stuffing envelopes, cleaning the office, answering phones, or making deliveries.  Tech-savvy teenagers can help in marketing a company through social media. Or they can help in maintaining the spreadsheets of the firm.

They can’t be hired for jobs that have no connection with your business, like mowing your lawn at home. Suffice to say, children shouldn’t be asked to do household chores and get compensated for it.

Since your child is considered as a real employee, he or she should fill out their timesheets. It is also recommended that they sign a written employment agreement that specifies the duties and work hours of the employee.

  1. The work must be age-appropriate.

The work assigned to your child should be age-appropriate. There’s a chance that a 8 or 9 -year old child can help in some tasks in the office like stuffing envelopes or even making deliveries. But it will be difficult for the IRS to believe that a child aged below that age can perform any useful work for your firm. Employing a 6 or 7 year old for photocopying work or filing can put you in trouble with the IRS.

It’s also a no-no for children aged 16 years and below to work in a dangerous industry. Hence if your business is heavy equipment contracting, you can’t assign your 15-year old son to the field.

  1. Child should comply with legal requirements.

Since the child is considered a real employee, he or she should comply with the same legal requirements as you would when you hire a stranger. Thus, he will have to apply for a Social Security Number and fill out IRS Form W-4. He or she should also complete Form I-9 of the U.S. Citizenship and Immigration Services.

  1. Compensation must be reasonable.

Simply put, your child’s salary should be consistent with market rates.

Many shrewd business owners would try to give their children a big compensation because it can give them more tax savings in the long run. It would enable them to shift much of their income to their kids who are likely to be in a much lower income tax bracket. But you shouldn’t attempt to do this as the IRS would eventually find out about this if they do an audit.

In paying your children, you should give them a reasonable compensation. The total compensation must include the salary plus all the fringe benefits such as health insurance and medical expense reimbursements.

To get an idea on how much you are to pay your child, you can call an employment agency to see the typical compensation for the type of work that your youngster will do in your business.

  1. Pay in cash.

It’s up to you to decide how much you would pay your son for the services he renders to your business. Just make sure that you pay him in cash if you don’t want to get in trouble with the IRS. Compensation in the form of foods and other things won’t cut it.

There was this case of a tax preparer in Washington who also owned an employment agency. She employed her three children aged 8, 11, and 15. The kids earned a combined $15,000 in two fiscal years for doing tasks like filing and stuffing envelopes. Their mom deducted their salary as business expenses. The IRS disallowed it.

Why?  It’s because the children’s wages was used by their mom to pay for their food, often pizza.  Also, she used the money to pay for their tutor’s fees.

While the mother argued that it was her children who asked her to spend their earnings that way, the Tax Court ruled in favor of the IRS. It noted that it is her parental obligation to provide food and support her children’s education, and the wages of the kids should not be used for these purposes.

  1. Be diligent about documentation and book keeping.

One way to ensure that this arrangement won’t backfire on you is to be diligent about the documentation and book keeping. Doing so would convince federal or state auditor that you reasonably employed your children for your business, and that your tax claims are legit.

Aside from getting all the state permits necessary to employ children, your company’s recordkeeping and payroll tax accounting must also be fool-proof. The payroll for your kids must be done in the same way that an employer would do the payroll for another employee. Paying a fair market rate, as mentioned earlier, would also satisfy the auditors.

  1. Your child should also help your business.

Finally, business owners should not only be concerned with the tax savings they’ll get when they hire their children. They must also be sure that their children can do the tasks assigned to them. The children should be able to help the business, and not just for the tax savings that the firm gets because of them.

Sure, they’ll reduce taxes by employing a child. But if the child doesn’t do a good job at work, then it would probably best to hire another individual to do the job for the firm.

Let’s say that a father hires his 15-year old son to help typing documents in his office. He’s able to save $3,000 in taxes for doing so. But if his son just lounges around the office and doing nothing, then the father didn’t really get the best out of this arrangement. It would have been better for him to hire another person who can actually help his company.

With the tax savings that small business owners can get, it really makes a lot of sense for them to hire their children during summer or even on weekends. The business owner not only stands to save on taxes, but also instils in his/her children values like hard work and responsibility.

If you decide to do this, you should ensure that you do things right. Get your children the necessary permits. Do your accounting cleanly. And give them real wages—not slices of pizza. If you do things correctly, you can save thousands of dollars in taxes while training your children who could be your successor one day.

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Register for our upcoming FBAR Webinar (Next Saturday @ 10 AM)
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Free Consulting Appointment with Sanjiv Gupta CPA

Good news for all of our tax preparation (Individuals, 1099 and Business Owner) clients.  Sanjiv Gupta CPA firm is offering one free consulting session (30 Minutes) with Sanjiv to any customer who does their 2013 tax return using our tax preparation services during the month of February.  Limited number of appointments are available and we can only offer free appointments based on first come, first serve basis.  Please book your FREE CONSULTING APPOINTMENT well in advance to take advantage of this promotion.

How it works ?

Step 1Do your 2013 Tax Return using our Firm during the month of February.

Step 2 – Book Your free Consulting Appointment with Sanjiv Gupta CPA.

Restrictions Applies to Free Consulting Appointments:

–  You can only book your Free Consulting Appointment during (July 2014 to Dec 2014)

–  Limited Number of Free Appointments are available based upon first come, first serve basis.

 

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For the limited time only, you can buy a $100 Sanjiv Gupta CPA Firm Gift Card for only $50. You can use this Gift Card for any kind of consulting or tax preparation services offered by our firm. You can book your consulting appointment or order tax preparation services anytime before June 30th 2014. Use it for Tax Planning Consultation, FBAR Consultation, Business Planning Consulting, Tax Preparation or any other kind of consulting or tax preparation services. Gift card can’t be used for tax payments.

Limitations – You can use only one gift card per appointment or apply towards one tax preparation service. However, you are welcome to purchase multiple gift cards for different appointments and/or different services. For example – Mr. Sharma can purchase two gift cards and apply one for the Tax Planning consultation and one towards his personal tax return preparation. But he can’t apply both gift cards for the Tax Planning consultation. You can purchase the gift cards anytime before January 31st 2014 but you have till June 30th 2014 to redeem the gift card.
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