Comparing Corporations to Sole Proprietorships

Comparing Corporations to Sole Proprietorships Comparing Sole Proprietorships  to CorporationsI’m asked all the time if a new contractor should be a sole proprietor (sole owner) or a corporation.

I’m currently a sole owner but have been incorporated in the past. I’ve been thinking of incorporating again for the possible tax benefits and personal liability protection and thought I’d do a little research. Below is an article I found on LegalZoom.com that compares the different types of business entities. I thought you might benefit from this information as well.

Comparing Corporations to Sole Proprietorships and Partnerships

Corporations enjoy many advantages over partnerships and sole proprietorships, but there are also some disadvantages to consider.

Advantages of a corporation versus a sole proprietorship or partnership

Shareholders in a corporation are not liable for corporate debts

This is the most important attribute of a corporation. In a sole proprietorship or a partnership, the owners are personally responsible for business debts. If the assets of the sole proprietorship or partnership cannot satisfy the debt, creditors can go after each owner’s personal bank account, house, etc. to make up the difference. On the other hand, if a corporation runs out of funds, its owners are usually not liable.

Please note that under certain circumstances, an individual shareholder may be liable for corporate debts, if, for example, a shareholder personally guarantees a corporate debt. Also, under certain circumstances, a court may determine that justice requires disregarding the corporate form and treating the acts and liabilities of a corporation as the acts and liabilities of the shareholders. This is sometimes referred to as “piercing the corporate veil.” Some of these circumstances where a court may decide to pierce the corporate veil include:

  • If personal funds are intermingled with corporate funds
  • If a corporation fails to have director and shareholder meetings
  • If the corporation has minimal capitalization or minimal insurance
  • If the corporation fails to pay state taxes or otherwise violates state law (like defrauding customers)

Corporations offer self-employment tax savings

Earnings from a sole proprietorship are subject to self-employment taxes, which are currently a combined 13.3% on the first $106,800 of income. With a corporation, only salaries (and not profits) are subject to such taxes. This can save you thousands of dollars per year.

For example, if a sole proprietorship earns $80,000, a 13.3% tax would have to be paid on the entire $80,000. Assume that a corporation also earns $80,000, but $35,000 of that amount is paid in salary, and $45,000 is deemed as profit. In this case, the self-employment tax would not be paid on the $45,000 profit. This saves you over $5,000 per year. Please note, however, that you should pay yourself a reasonable salary.

Corporations have continuous life

Unlike a sole proprietorship or partnership, a corporation does not expire upon the death of its shareholders, directors or officers.

Corporations make raising money easier

A corporation has many avenues to raise capital. It can sell shares of stock and create new types of stock, such as preferred stock, with different voting or profit characteristics. Plus, investors can rest assured knowing they are not personally liable for corporate debts.

Transferring the ownership interests of a corporation is easier

Ownership interests in a corporation may be sold to third parties without disturbing the continued operation of the business. A sole proprietorship or partnership, on the other hand, cannot be sold whole. Instead, each of its assets, licenses and permits must be individually transferred. Plus, new bank accounts and tax identification numbers are required.

Advantages of a sole proprietorship and partnership versus a corporation

Comparing Corporations to Sole Proprietorships and Partnerships

Corporations enjoy many advantages over partnerships and sole proprietorships, but there are also some disadvantages to consider.

Advantages of a corporation versus a sole proprietorship or partnership

Shareholders in a corporation are not liable for corporate debts

This is the most important attribute of a corporation. In a sole proprietorship or a partnership, the owners are personally responsible for business debts. If the assets of the sole proprietorship or partnership cannot satisfy the debt, creditors can go after each owner’s personal bank account, house, etc. to make up the difference. On the other hand, if a corporation runs out of funds, its owners are usually not liable.

Please note that under certain circumstances, an individual shareholder may be liable for corporate debts, if, for example, a shareholder personally guarantees a corporate debt. Also, under certain circumstances, a court may determine that justice requires disregarding the corporate form and treating the acts and liabilities of a corporation as the acts and liabilities of the shareholders. This is sometimes referred to as “piercing the corporate veil.” Some of these circumstances where a court may decide to pierce the corporate veil include:

  • If personal funds are intermingled with corporate funds
  • If a corporation fails to have director and shareholder meetings
  • If the corporation has minimal capitalization or minimal insurance
  • If the corporation fails to pay state taxes or otherwise violates state law (like defrauding customers)

Corporations offer self-employment tax savings

Earnings from a sole proprietorship are subject to self-employment taxes, which are currently a combined 13.3% on the first $106,800 of income. With a corporation, only salaries (and not profits) are subject to such taxes. This can save you thousands of dollars per year.

For example, if a sole proprietorship earns $80,000, a 13.3% tax would have to be paid on the entire $80,000. Assume that a corporation also earns $80,000, but $35,000 of that amount is paid in salary, and $45,000 is deemed as profit. In this case, the self-employment tax would not be paid on the $45,000 profit. This saves you over $5,000 per year. Please note, however, that you should pay yourself a reasonable salary.

Corporations have continuous life

Unlike a sole proprietorship or partnership, a corporation does not expire upon the death of its shareholders, directors or officers.

Corporations make raising money easier

A corporation has many avenues to raise capital. It can sell shares of stock and create new types of stock, such as preferred stock, with different voting or profit characteristics. Plus, investors can rest assured knowing they are not personally liable for corporate debts.

Transferring the ownership interests of a corporation is easier

Ownership interests in a corporation may be sold to third parties without disturbing the continued operation of the business. A sole proprietorship or partnership, on the other hand, cannot be sold whole. Instead, each of its assets, licenses and permits must be individually transferred. Plus, new bank accounts and tax identification numbers are required.

Advantages of a sole proprietorship and partnership versus a corporation

Sole proprietorships and partnerships cost less to establish

Corporations cost more to set up and run than a sole proprietorship or partnership. For example, there are the initial formation fees, filing fees and annual state fees. However, these costs are partially offset by lower insurance costs.

Sole proprietorships and partnerships have minimal formalities

A corporation can only be created by filing legal documents with the state. In addition, a corporation must adhere to formalities. These include holding director and shareholder meetings, recording corporate minutes and having the board of directors approve major business transactions. If these formalities are not maintained, the shareholders risk losing their personal liability protection. While keeping corporate formalities is not difficult, it can be time-consuming.

On the other hand, a sole proprietorship or partnership can open and operate without any formal organizing or operating procedures – not even a handwritten agreement.

Sole proprietors and partners are not liable for unemployment insurance

A shareholder-employee of a corporation is required to pay unemployment insurance taxes on his or her salary, whereas a sole proprietor or partner is not. Currently, the federal unemployment tax is 6.2% of the first $7,000 of wages paid per year, with a maximum of $434 per employee.

If you pay any required state unemployment tax, you can receive an offset credit of 5.4%. This effectively lowers the federal rate to 0.8% with a maximum of $56.00 per employee per year.

End of Article

I asked my CPA if it would be beneficial for me to incorporate. He did remind me of the $800 tax bill due to the Franchise Tax Board every March, plus the added cost of him preparing the filing. But it’s still not clear to me if I would be paying less tax as a salaried officer/director of a corporation or as a self employed person. It could be that with my income it wouldn’t be beneficial to incorporate. I guess I’ll have to do more research.

If you would like to incorporate, I offer a personalized/hand submitted incorporation service for $125 plus State fees, or you may choose to use an online company that I’m affiliated with. If you would like to have me file your Articles of Incorporation, send me an email with the corporate name you’ve chosen and I’ll get you started on the path to incorporation.

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