Incorporate! Incorporate! Incorporate!
Part 1 of a series
By J. D. Obenberger, Esq.
This article is the first in a series on corporations and strategies for using them. Obviously, every situation is different, so I encourage you to speak with an attorney before pursuing a corporate strategy.
Is incorporation an unnecessary expense or task to be put high on your "to do" list? Depending on the source, it is well established that sixty to eighty percent of businesses will fail in their first two years. Many of these businesses, and probably yours, are funded in a variety of ways without first protecting themselves. The simple fact, however, is that without corporate protection, you are personally liable if the business fails. Do you want you're home exposed? How about your car? How about your paycheck from your regular job? By conducting your business through a corporation, you create a legal shield between potential liability and your personal property. Does that sound like an unnecessary expense or something you should do immediately? Well, I imagine that all that walking will be good for you when you lose your car!
There are a number of business options that exist in the modern corporate world. Unfortunately, the large variety often leads to confusion and nasty surprises for business owners. Following is a short explanation of the most common business structures.
Limited Liability Company
A limited liability companies, or "LLC" as it is better known, was a very popular entity choice in the early nineties. An LLC is similar to a corporation, but can be taxed as a partnership. Depending on the state you are in, the LLC can have either one owner or two. These owners carry the legal title of "member", which is the functional equivalent of a shareholder in a corporation. The LLC provides a shield for your personal assets. Of significance, not all states recognize LLCs as legal business structures.
You should note the "was" qualifier in the first sentence of the previous paragraph discussing the popularity of LLCs. Although LLCs are a flexible way to create protection from personal liability, the cost associated with the companies is less attractive. Many states have enacted a cost or tax known loosely as the "gross revenues tax" for LLCs. In California, for instance, an LLC is required to pay an annual "fee" based on its gross revenues. If you made $250,000 in gross revenues in 2000, the fee would be approximately $1,040. This fee is in addition to an $800 fee for "the privilege" of doing business in California. In short, the fees can pile up with an LLC. Before forming an LLC, you are encouraged to speak with an accountant or attorney regarding the requirements in your state.
Corporations come in two basic forms, a "C" corporation and an "S" corporation. There are a variety of differences, but the central difference is a tax issue. Briefly put, a "C" corporation will be taxed on its revenue and you will then be taxed on any money you take out of the corporation. An "S" corporation is taxed one time for the money earned. The double taxation issue with a "C" corporation is typically wiped out by expensing legitimate costs of doing business. Regardless, it is vital that you speak with a tax expert to determine the best choice for you in light of your financial position.
Regardless of the tax classification, a corporation is considered to be an independent entity from a legal standpoint. The owners of corporations are known as shareholders with some states allowing one owner while others require a minimum of two. In most states, the shareholders are listed in a database that is available to the public.
The advantage of both corporations and LLCs is that they are recognized as an independent legal entity for liability purposes. What does this mean? Essentially, the companies will be treated as though they are an independent person. As a result, the liabilities of the company do not pass through to you because the company is considered to be an independent structure. As a practical example, Kmart recently filed bankruptcy. The individual shareholders were not required to file bankruptcy and they will lose nothing more than their investment if the company is liquidated. Your use of an LLC or corporation in the adult industry will have the same effect. You will be risking only your time and investment in the business, not your personal assets. In short, you should select either a corporation or LLC for your business.
In this author's opinion, it is better to have died a small child then to be in a partnership. Unfortunately, many webmasters create partnerships with other webmasters. The folly of this strategy is significant for one primary reason: a partnership does not provide any protection from liability! In many ways, it is worse. Under well-established law, most partnerships are classified as "general". This simply means that all the partners are contributing to the administration and running of the partnership business. This classification, however, has a grisly result. In a general partnership, each partner is jointly liable for the debts of any other partner arising from the business. For instance, you and your partner go to Las Vegas for the adult convention. You go to a sponsor party and enjoy a few drinks. Your partner then runs over a few people with the rental car while heading back to the room. Each of the partners is liable for the damages claimed by the injured people. That means YOU! Even if you were not in the car, did not rent the car, never saw the car and don't drink! In short, the dangers of a partnership are extreme.
Limited Partnerships ["LP"] are perhaps the most misunderstood business entity. A limited partnership is similar to a general partnership. The difference, however, is that a number of the partners can limit their liability by being designated as limited partners. It is critical to note that these limited partners are restricted to simply making a capital [cash, content, equipment] contribution to the partnership. They cannot actively be involved in the running of the business. If they are, they lose any protection from partnership debts. Many limited partnerships end disastrously. If you are married to the idea of pursuing a limited partnership, you must do so in combination with corporations. This strategy is well beyond the scope of this article, but feel free to contact me if you wish to pursue a limited partnership.
So how do you pursue joint businesses with others in the adult industry if partnerships open you to liability? Look for the next article, which covers this very subject.
J.D. Obenberger is the lead attorney for AdultInternetLaw.com. AdultInternetLaw.com provides legal services to adult businesses, focusing on business strategy, corporate and contract preparation and site reviews. He can be contacted at firstname.lastname@example.org. This article is for general education purposes and does not address every facet of the laws surrounding the subject. Nothing in this article creates an attorney-client relationship.