Advice About Regulatory and Compliance Issues
If you are not familiar with many of the terms and acronyms used by the government, here is a good primer post.
Business Licenses & Permits
Business licensing is one of the most confusing aspects of starting a business since it varies so much from state to state and from business to business.
Business licensing is not the same as registering an entity with the Secretary of State, which we will cover later. Business licenses may be necessary on a federal, state, county, or city/town level.
Registering Your Entity
One of the first things most new business owners do is register their entity with the Secretary of State. While this may seem like a logical first step, it is recommended that you register only after you have considered how much funding you would need and where it would come from. Each type of investor, such as family, friends, angel, etc. requires a different relationship with the business that is defined by the entity.
If you have not already figured out how much funding you need or where it will come from, you should explore the following page first.
When it comes to selecting an appropriate entity for your new business, there are pros and cons associated with each entity. This post from SCORE does a pretty good job of describing the pros and cons of the most common types of entities.
Assuming that you have selected the most appropriate type of entity for your new business, you are now ready to register your entity with the Secretary of State (SOS).
Most states follow the URL convention www.sos.state.NN.us, where NN is the two-letter abbreviation for the state. However, not all states follow this convention but a Google search for “State Name” + “SOS” will usually work to find the URL of your SOS.
The SOS does more than just business registration, so you may need to search through a bunch of programs and services to locate where they regulate business functions. Once located, the first step is to verify that the name you chose for the new business is not already taken. Be sure to include the entity designation such as “LLC” or “Inc” in the name.
Remember, the primary reason that you register with the SOS is that in the event of a lawsuit, the plaintive or his legal counsel can simply search the list of business names to locate the Register Agent who will be the person that will be served.
There is a lot of misinformation regarding entities so the first thing you should understand before you register is why a new business would want to register with the Secretary of State in the first place.
Another common piece of misinformation related to registering an entity is the protection it affords in terms of limiting the liability of a business owner in the event of a lawsuit.
After verifying that the name you want is not already taken, you will be asked to complete an online application process. The questions you will be asked are pretty straightforward such as the address of the business, the person completing the application, and the name and address of the registered agent who can be a founder, local lawyer, or a company like incorp which I personally use for some of my foreign entities.
A foreign entity is an existing business that is registered to do business in a state or jurisdiction other than where it was originally filed. For example, in my case, I have a real estate company in Colorado where I live. That company has assets in Ohio and Virginia. In Colorado, we have a domestic LLC and in Ohio and Virginia, we are registered as foreign entities. The general rule for having to register as a foreign entity is if the business has a physical presence, employees, or has a bank account in another state.
If you simply sell products online via the Internet and have no office, employees, or bank account in a state where the buyer takes possession, generally you do not need to register as a foreign entity or collect local sales taxes. However, when in doubt, it is always a good idea to seek guidance from an attorney specialized in e-commerce.
Two of the most popular entities used for small businesses are Limited Liability Companies and Corporations.
If you are registering an LLC, you will have to make a choice about how decisions will be made.
“Member-Managed” means that every member gets a vote and that all members are active in the decision-making process. A member-managed LLC makes every member a manager and therefore, each member can be considered culpable for bad decisions made by the business and therefore subject to being sued as a manager.
“Manager-Managed” means that one or more managers will be the decision makers and the rest of the members who are considered investors only, and not managers, have liability protection from bad decisions that the business makes since they were not involved in the decision-making process.
When you complete the application and pay your registration fee, the SOS will issue your “Articles of Organization”.
Corporations are different from partnerships and LLCs in that they issue shares of stock. So, if you are registering a Corporation, either a Sub-Chapter S (S-Corp) or a C-Corp, you will be asked about the number of common stock shares the corporation is authorized to issue. This is the number of shares that the corporation can issue.
Some businesses operate in states that have a franchise tax. Colorado, where I live, does not have one. In states with a franchise tax, the business will often initially, list a low number of authorized shares to minimize expenses. A franchise tax is essentially a fee that gives a business the privilege to operate in the state, and unlike what the name implies, it is not limited to just franchises.
Another decision a corporation will have to make is whether there will be more than one class of stock, such as common stock and preferred stock.
Common Stock has voting rights and the number of shares that an investor owns accords them a greater share in decision making (since you vote your shares). You, additionally, have claims to the company’s profits based on the number of shares you own.
Preferred Stock, in contrast, generally does not have voting rights but they often have a greater claim on the assets upon liquidations and often receive fixed payments (not based on profits) before common stockholders.
Here is a link to an article that provides a more comprehensive description of each type of stock.
When you complete the application and pay your fee, your “Articles of Incorporation” will be issued.
If you live in Colorado, there is an official tool developed by the State of Colorado to help you register and manage a business. It is called MyBizColorado.
Once you have formed the entity, you are not done yet. Here are several critical formation errors many businesses make.
Also, if a business does work in other states and there is a possibility that it might be suited, they would want to register as a foreign entity in that state. When a business registers as a foreign entity and a customer files a lawsuit, the registered agent designated in the articles in that state will be served and the business will be notified of the legal action being taken. If the business is not registered in that state but do business there and are suited, there is no one to notify the business, therefore the plaintiff can win a summary judgment without the business ever knowing a lawsuit was ever brought against them.
However, if a business just ships a product to a customer in a different state and does not have an office in that state, it does not need to register in that state as a foreign entity.
There are essentially 3 types of taxes that most business will pay, Property, Income, and Sales.
Just like a homeowner pays real estate taxes based on the assessed value of the property, so do businesses if they own real property. Property taxes are assessed by local entities such as towns and cities for local purposes such as paying for schools, roads, and infrastructure improvements. The business will receive an annual tax bill based on the value of the real property.
Being a business owner has risks and the government rewards this risk-taking with some income tax avoidance strategies for business owners.
Many new businesses are usually confused about Income taxes. The following posts attempt to explain some of the nuances of income taxes.
If you raise money using a crowdfunding campaign, the amount you raise may be subject to income taxes in some situations.
Sales taxes are generally assessed based on the sale of tangible products and not labor. However, some states may tax some types of labor so it is always advisable to check with your local sales tax office.
Sales taxes are assessed when a transaction occurs between a business and the end user of a product in a retail transaction. When a business sells goods at wholesale to another business which will add additional value and is not the end user of your product, no sales taxes should be collected.
What a business needs to understand about sales taxes is that there are many taxing jurisdictions that collect sales taxes and that when the business sells a product that it will deliver or ship to the end user; taxes are collected in the jurisdictions the business has in common with the buyer, based on where the end user will get the delivery. Here is a video that looks at what you need to know about sales taxes.
ALERT: COLORADO SALES TAX UPDATE
Effective December 1st 2018 Colorado retailers are expected to collect sales taxes from all Colorado Taxing jurisdictions not just those they have in common.
Here is a LINK to a Webinar from the Colorado Department of Revenue that explains the new tax collection procedure.
Also here is the link the updated DR-1002 that includes the tax rates for all Colorado taxing jurisdictions.
In June 2018, the Supreme Court ruled that even if an online business does not have a nexus (physical presence) in a state, the state can require online retailers to collect and remit sales taxes.
This ruling has far-reaching implications for any business selling products online. While the rules are changing day by day, CPA Brad Whitten of Pikes Peak Financial Group explains how the new sales tax collection rules may apply to you.
However, since the initial sales tax ruling came down, marketplace facilitators have emerged, allowing smaller eCommerce retailers to essentially outsource the sales tax collection.
Prior to the court’s ruling, most eCommerce retailers only had to have a sales tax license and collect sales taxes for all jurisdictions for a single location. Based on the location where the buyer took possession of goods, the seller only had to collect sales taxes for the taxing jurisdictions that the seller and the buyer had in common. That all changed, as many states have used the supreme court’s ruling to impose their own requirements on Internet sellers in order to collect sales taxes.
Here is what you need to know as an online retailer.
There are 7 rules related to collecting sales taxes that a business must understand.
When you primarily provide labor and occasionally products to supplement an offering, there are a few sales tax collection workarounds.
If a business has more than one owner, it will need to apply for a Tax ID Number (TIN) for the business from the IRS. If the business has employees and it is a sole proprietor or a single member LLC, the business does not, technically, need to have a TIN as the owner’s social security number (SSN) is the TIN. However, if the business has employees, they should consider getting a TIN for the business so the owner does not have to use their SSN on the W2’s they send to their employees and on other tax forms.
Note: if a business make purchases from wholesalers they are considered tax-exempt transactions since the business is not the end user of the products. So as not to give every wholesaler a SSN the business would also want to have a TIN.
A Tax ID Number (TIN) is also referred to as an Employee ID Number or EIN for short.
Before we get into the meat of the discussion, which is how to pay owners, managers, and employees of a business, the issue of using subcontractors and freelancers should be explored. Here is a video that takes a closer look at subcontractors and freelancers.
If you hire a subcontractor directly and not through a freelancing agency, and later, that subcontractor fails to pay his withholding taxes and it is determined that the subcontractor could be considered your employee, the business may become liable for their unpaid taxes.
While having a subcontractor agreement is never a perfect form of protection, it is always a good idea to have the people you have subcontracted sign an agreement stating that they are independent contractors. Below is a template for an Independent Contractor Agreement that you can download.
The way you get a return as an investor and/or employee of your business varies with the entity type you select. Choose an entity from the following list to see a paper on how owners and managers are paid:
- Sole Proprietor
- LLC (Choose one below)
- Limited Partnership