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A common first question for small owners is whether to incorporate as an LLC or a corporation. While the two entities are similar in many ways, they also have several differences. LLCs, as opposed to corporations, combine the personal liability protection of a corporation with the tax benefits and simplicity of a partnership. Also, corporations can elect to be taxed as an S corporation. S corporation status provides many of the benefits of partnership taxation, but there are certain restrictions. There are benefits to both entity structures, but personal liability protection is basically the same for both, so your decision to form a corporation or an LLC should not hinge on the asset protection issue. Consequently, which entity is best for you will depend on your businesses’individual needs and circumstance.
Advantages of a Corporation
Here are four principal advantages to forming a corporation rather than an LLC:
Corporation profits are not subject to self-employment taxes. Salaries and profits of an LLC are subject to Medicare, Social Security, and certain other taxes. In the case of a corporation, though, only salaries (not profits) are subject to such taxes.
Corporations are able to offer a greater variety of fringe benefits. In fact, various retirement, stock option and employee stock purchase plans are available only for corporations.
Judicial treatment of corporations is more predictable. Unlike corporations that have been around for a long time, LLCs are a relatively new legal creature and still being tested by courts. Furthermore, some states place restrictions on the type of business conducted by an LLC. For Ohio LLC restrictions and rules, see the Ohio Revised Code, Chapter 1705.
Transfer of ownership is easy for corporation. Corporation stock is freely transferable, as long as IRS ownership restrictions are met. LLC membership interest (ownership) typically is not freely transferable – approval from other members is often required.
Advantages of an LLC
Here are four main advantages to forming an LLC rather than a corporation:
There are fewer corporate formalities with LLCs. Corporations have a relatively detailed list of things that need to be done in order to insure the courts will “respect” the corporate structure and liability shield. For example, corporations must hold regular meetings of the board of directors and shareholders and they must keep written corporate minutes. Conversely, members and managers of an LLC are not required to hold such meetings.
LLCs have no ownership restrictions. S corporations, for example, cannot have more than 100 stockholders. Also, each stockholder in an S corporation must be a U.S. resident or citizen. S corporations cannot be owned by C corporations, other S corporations, LLCs, partnerships or many trusts. These restrictions do not apply to LLCs (or C corporations). And LLCs are allowed to have subsidiaries without restriction.
LLCs have greater tax flexibility. LLCs are treated as a “pass-through” entity for tax purposes. In fact, LLCs can elect to be taxed as either a C corporation or an S corporation.
LLCs have the ability to deduct certain losses. Members who are active participants in an LLC’s business can deduct operating losses against their regular income to the extent permitted by law. But taxes issues are usually not a legal question. They are an accounting question, so please consult your tax planner also.