small business basics presented by: firstname lastname

Small Business Basics

Presented by: Firstname Lastname

Disclaimer

This information is provided for informational purposes only by the Texas Young Lawyers Association ("TYLA") a division of the State Bar of Texas. TYLA does not warrant this information for any purpose. This presentation shall not constitute legal advice, nor does it create an attorney-client relationship. The laws referenced in this presentation may have changed or could be affected by case law developments. Do not rely on this presentation or your interpretation of same for any purpose. If you have a legal question you should consult with a properly licensed lawyer.

Are you an entrepreneur?

1. Must have burning desire and discipline to plan, work, and sacrifice in order to successfully transform your idea into reality. 2. Are you ready, willing and able to work harder than you ever have before? 3. Do you have self-confidence and discipline? If you’ve answered “no” to any of these questions, you may not be ready for entrepreneurship

Developing Your Idea

So what’s your idea?What’s your product?What goods or services are you going to provide to whom and whose needs are you going to meet? For starters, you should ask yourself “What are my skills, what am I good at, and what do I love to do?”

The Business Plan

A business plan provides a blueprint for your business and highlights your ideas, strategy, and team; it will be used by you and others, such as banks, investors, and potential partners.

A business plan is a dynamic document.

The Business PlanOther topics: 1. start-up costs 2. licensing and certification 3. capital (financial, intellectual, and human) 4. suppliers, equipment, and space 5. technology 6. advertising 7. banking relationships

The Business PlanOther topics: 8. insurance 9. taxes 10. governance and compliance 11. growth 12. alternative strategies and opportunities, and 13 strategy

Choosing the Right Business

1. Starting a New Business: Is your idea new or novel?

2. Purchase an Existing Business: Many entrepreneurs start as franchisees in proven businesses, thus avoiding some of the risks and challenges inherent with starting a new business from scratch.

Choice of Business Entity

Texas law (and most states) recognizes several business structures.

1. Sole Proprietorship

2. General Partnership

3. Corporation

4. Limited Liability Companies

5. Limited Partnerships

Business Entity: Sole Proprietorship• An individual person (if there is more than one owner then it

is a partnership as described below) is doing business under his own name (or even under an assumed name).

• No formal organizational requirement• There is no limit to liability - your personal assets are at

stake!• You can only transfer the interests in your business by

selling the assets themselves which could mean more tax liability.

• Access to capital can be limited.• No entity taxation at either the federal or state level because

there is no entity to fax.

Business Entity: General Partnership• Two or more individuals (or entities) have shared ownership

of the business.• No formal organizational requirements to be formed nor

does it have any formal management or governance requirements

• Any partner of the partnership can bind or obligate the partnership

• There is no limit to liability for the partners• Full flow through taxation - taxes are paid at the individual

partners’ level• general partners (individuals) may also be subjected to self-

employment taxes.

Business Entity: Corporation

Under most state laws, there is one kind of corporation.

However, from a federal tax perspective there are two: 1. a C-Corporation and 2. an S-Corporation


Both types of corporations have: • rigorous management/governance structures• a certificate of formation must be filed with the Secretary of

State• a registered office and agent for service of process in Texas• at least one director who is in charge of overseeing the

corporation’s business• at least a president and a secretary as officers• one annual meeting of the directors and the shareholders of

the corporation must take place to elect directors and officers


Both types of corporations have the following benefits: • corporations provide for continuity of life regardless of

whether you are still around or not • free transferability of interests (with the exception of some

restrictions applicable to S-Corporations as discussed below)

Formalities such as annual meetings, holding corporate assets separate and having arms-length transactions between corporations and shareholders/directors must be followed to maintain limited liability of the shareholders.


C-Corporation:• More flexible type of corporations in that there is no limit in

the amount of shareholders they may have• Shares of a corporation can be sold to anyone whether a

corporation, individual person or different entities• Double taxation

o as a separate legal entity, pays federal and state taxes

(35%) and then individual shareholders also pay taxes on whatever dividends (distributions of earnings) are paid to shareholders (generally 15%)


C-Corporation:

• If sold, there is a single tax to shareholders if the interests (shares) are sold but there is double taxation if assets are sold as it is deemed income to the entity and then a distribution to shareholders

• Because of the double taxation feature of a C-Corporation, it is generally not a desirable business structure for small businesses

Business Entity: CorporationS-Corporation:• Named as such because of Subchapter S of the Internal

Revenue Code• From a governance and state law perspective, S-

Corporations are essentially the same as C-Corporations.• Form 2553 is filed, an S-Corporation is viewed as a

partnership or sole proprietorship for taxation purposes, depending on the number of shareholderso This means that the corporation itself is not taxed, as C-

Corporations are; rather the S-Corporation’s profits are passed on to its shareholders, who pay income tax on that money.

Limited Liability Companies

LLCs in most cases may be organized in two ways: (i) member managed; or

more like a partnership. (ii) manager managed

more like a corporation. manager (or managers) is in charge of running the

business, very much the same way directors are tasked in corporations, and members do not have an active role in running the business (like shareholders).


LLC is formed when a certificate of formation is filed with and accepted by the Secretary of State.LLC certificate of formation is required to state whether the LLC will be manager or member managed and sets forth the names of each initial manager (if manager managed) or initial member(if member managed).LLCs have a continuity of life and are very flexible as far as transferability of interests with the exception that LLC interests can not be publicly traded


No limitation on the number or type of members

If an LLC is owned by a single member, for taxation purposes it is treated as a disregarded entity.

If the owner is a corporation or another LLC, it is treated as a division or branch of that entity.

An LLC with multiple members is treated for tax purposes as a partnership

Limited Partnership

Limited partnerships (LPs) are partnerships where certain partners have limited liability (limited partners) and at least one partner (general partner) has unlimited liability.LPs are formed by filing a certificate of formation with the Secretary of State.LPs provide limited liability for the limited partners and continuity of life.A general partner is usually an LLC or a corporation in order to provide limited liability to those forming it.Federal taxation perspective, LPs, are taxed similarly to LLCs.

Which entity do I choose?Consider:

(i) there is a large possibility you will go public,

(ii) you have foreign investors interested in investing in your business, or

(iii) you are in an industry which corporations are the preferable or most commonly used business entity

Remember, S-Corporations are a possibility, but not if scenarios (i) or (ii) apply.

Which entity do I choose?

Consider: In Texas at least, LPs might be a preferable business structure to an LLC if your business will be limited to passive investments or will only hold certain assets, such as intellectual property or real estate Investors in certain industries, such as oil & gas and real estate, are used to LPs as LPs are the business structure that have historically have been used.

Resources

A. Your local Chamber of CommerceB. Lone Star Community CollegeC. Small Business Minority GroupD. www.EEOC.govE. www.dol.govF. One-stop business assistance center -City of HoustonG. El Paso Community College Small Business Development Center

Resources

H. Dallas Small Business Development CenterI. University of Texas at San Antonio Small Business Development CenterJ. www.sba.govK. Federal Trade Commission www.ftc.govL. www.irs.govM. www.window.state.tx.usN. www.texasworkforce.orgO. www.mbda.gov

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