Legal FAQ's

Legal FAQ's What business licenses does a small business need?

The following are just some of the business licenses/permits that a small business might need: Doing Business As (DBA) Registration (usually filed at the county level), City and/or County Business License, Fire Department Permit, Sign Permit, Health Department License, and Liquor, Wine, and Beer Licenses.

Where do I get a business license?

Your state and local government provides business licenses. We have found several local state resources that might help.

What legal aspects do I need to consider?

Licenses required, zoning laws, and other regulations vary from business to business and from state to state. Your local Small Business Administration (SBA) office and/or chamber of commerce will provide you with general information, but you will need to consult your attorney for advice specific to your enterprise and area. You also must decide about your form of organization (corporation, partnership, or sole proprietorship) and tax status (e.g., should you opt for a Subchapter S status?).

What is a "Fictitious Business Name"?

Businesses that use a name other than the owner's must register the fictitious name with the county as required by the Trade Name Registration Act. This does not apply to corporations doing business under their corporate name or to those practicing any profession under a partnership name. For more information, contact your state or local government.

If I operate my business under my personal name, is it necessary to register it someplace?

In most states you do not need to register your own name if you are using it as your business name. To determine what the requirements are in your particular state, go to BusinessLaw.gov and find the specific laws related to registering your business under the State and Local Information section.

What are the advantages of forming a limited liability company?

The LLC is generally considered advantageous for small businesses because it combines the limited personal liability feature of a corporation with the tax advantage of a partnership or sole proprietorship. Profits and losses can be passed through the company to its members, or the LLC can elect to be taxed like a corporation. LLCs do not have stock and are not required to observe corporate formalities. Owners are called members, and the LLC is managed by these members or by appointed managers.

What should I know about forming a corporation?

This is a complex business structure with more startup costs than many other forms. A corporation is a legal entity separate from its owners, who own shares of stock in the company. It can be created for profit or nonprofit purposes, and may be subject to increased licensing fees and more government regulation than other forms. Profits are taxed both at the corporate level and again when distributed to shareholders. Shareholders are not personally liable for corporate obligations unless corporate formalities have not been observed. Observing such formalities provides evidence that the corporation is a separate legal entity from its shareholders. Failure to do so may open up the shareholders to liability of the corporation’s debts. Corporate formalities include: issuing stock certificates, holding annual meetings, recording the minutes of the meetings, and electing directors or ratifying the status of existing directors. You are advised to always use the assistance of a qualified attorney when forming a corporation.

How do I incorporate my business?

Once the decision to incorporate your business has been made, the legal process begins with the preparation of a certificate of incorporation. Whereas in the past this was prepared by three or more legally qualified individuals, today only a single incorporator is needed. The incorporator may or may not be a person who will own stock. The state is likely to have a standard form for incorporating a small business. The three typical pieces of information requested are: corporate name, purpose, and corporate life span. The corporate name is usually required to be a business name dissimilar from any other firm incorporated within the state. In addition, the name must not be deceptive or misleading. The state charter office can tell you whether the name you want is available. The purpose of the business must be stated. It is a good practice to use a specific object clause that spells out the specific purpose for which the corporation is being formed. While most corporations are formed for an indefinite period, it is possible to set up a specific limited life. Often the reason for creating a corporation is because the life span of the business is unlimited. Incorporation documents will require: the names and address of incorporators, location of the registered corporate office in the state, the maximum amount and type capital stock to be issued at the time of incorporation, a provision for preemptive rights, a provision for regulation of internal affairs of the corporation, names and addresses of corporate directors until the first stockholders’ meeting, and the right to amend or repeal provisions within the certificate of incorporation. The above requirements cover incorporating as either a C Corporation or SubChapter S Corporation. However, the Subchapter S Corporation has several additional incorporation requirements such as: it must be an independent group not affiliated with any other, it may have only a single class of stock, no more than 35 stockholders (only individuals or estates may qualify as stockholders), and it must be a domestic corporation. Before signing any legally binding documents, consult with your attorney for legal advice. (Contributed by the Delaware SCORE Office.)

What is the advantage of forming an S-Corporation?

The structure of an S-Corporation is identical to the C Corporation in many ways, but offers avoidance of double taxation. If a corporation qualifies for S status with the IRS, it is taxed like a partnership: the corporation is not taxed, but the income flows through to shareholders that report the income on their individual returns.

Can you give me plain English definitions for the following: (1) a closely held corporation and (2) a personal service corporation?

Generally, a closely held corporation is a corporation that, in the last half of the tax year, has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals. Generally, closely held corporations are subject to additional limitations in the tax treatment of items such as passive activity losses, at-risk rules, and compensation paid to a corporate officers. A personal service corporation is a corporation where the main work of the company is to perform services in the fields of health, law, engineering, architecture, accounting, actuarial science, the performing arts, or consulting. Examples are law firms and medical clinics. Also, most all of the stock is owned by employees, retired employees, or their estates.

Are partners considered employees of a partnership or are they self-employed?

Partners are considered to be self-employed. If you are a member of a partnership that carries on a trade or business, your distributive share of its income or loss from that trade or business is net earnings from self-employment. Limited partners are subject to self-employment tax only on guaranteed payments, such as salary and professional fees for services rendered.



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