Choosing the Best Legal Structure for Your Business - Part 2

Whether in New York, New York or Durham, North Carolina, choosing the legal structure of a business is one of the most critical decisions every entrepreneur faces at the outset of a new venture. The effects of this choice reach well beyond whether you might face personal liability, will impact how much you pay in taxes, the level of paperwork and formality required, and even the ability to raise funding.

To help ensure that Durham entrepreneurs will make the right choice for their businesses, this article will cover some basic considerations with regard to some of the most popular organizational structures, including the Sole Proprietorship, Partnership, Corporation, and the Limited Liability Company.

See Part 1 of this post for information on Sole Proprietorship and Partnership

Corporation

A third, more sophisticated type of entity is the Corporation. Corporations are legal entities distinct from their owners and organizers, and can be taxed and held legally liable for their actions just like an individual. The greatest advantage of the corporate structure is avoidance of personal liability for the owners- it is extremely difficult to “pierce the corporate veil” and hold an owner liable for the debts and actions of the entity. 

The primary disadvantages, on the other hand, are the extensive cost and record keeping requirements of starting and operating a corporation. Unlike sole proprietorships and partnerships, corporations are required to pay taxes independent of those paid by corporate shareholders. This results in what is known as “double taxation,” because both the corporation and the shareholders must pay taxes on any earnings which are distributed. An S corporation structure—also known as a Subchapter S corporation—may be utilized to avoid this issue in lieu of a regular C corporation. In an S corporation, earnings and losses may be passed through to the tax returns of shareholders as in a partnership or sole proprietorship.

For those who perform personal services that requires a license from a North Carolina licensing board, the Professional Corporation is another option. In general, PC’s must be operated for a “single purpose,” meaning that all members must practice in the same professional field. Another restriction of PC’s is that only those licensed to perform professional services of the kind the business offers may own stock in the business. Like any other corporation, PC’s offer shareholders insulation from liability and owners may elect “S Corp.” status in order to gain the benefits of pass-through taxation. 

Limited Liability Company

Since its introduction in 1993, the Limited Liability Company, or LLC, has become the most common form of business structure in Durham, North Carolina. The LLC affords many of the advantages of the corporation and partnership business structures. Similar to a partnership, for instance, earnings and losses may be passed through to owners without taxation of the business itself. And similar to the corporation, the owners of an LLC are shielded from personal liability for the business’ debts and obligations.

In addition to the standard LLC, there is another option—the PLLC— for businesses which are deemed “learned professions” such as doctors, lawyers, accountants and engineers. The primary difference between PLLCs and LLCs is that the PLLC does not shield individual members from malpractice claims against them. PLLC members are still, however, protected from the liabilities and obligations of the business, and may not be held liable for another member’s malpractice. This liability structure is often chosen by professionals as it is more conducive to a stable business where malpractice suits may pose a risk to the company as a whole.

One downside of LLCs in comparison to corporations, however, is that it does not have shares or stock certificates. As a result, it may be difficult to raise public funding and owners will have to decide whether each investor will be a simple member of the LLC, or a member-manager with authority to act on behalf of the entity.

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While the considerations above are a great place for the entrepreneurs of Durham, North Carolina to start when deciding what type of business to form, the decision is ultimately much more nuanced. In order to ensure the best choice of form for your business, it is advisable to speak to an attorney as to your specific needs and goals. Indeed, while most entrepreneurs will tell you to seek legal advice when drafting Articles of Incorporation or Organization for your new Corporation or LLC, it’s just as important to get the first step right.

Michael E. Kohagen is an attorney with Crabtree, Carpenter & Connolly, PLLC, in Durham, NC.

Choosing the Best Legal Structure for Your Business - Part 1

Whether in New York, New York or Durham, North Carolina, choosing the legal structure of a business is one of the most critical decisions every entrepreneur faces at the outset of a new venture. The effects of this choice reach well beyond whether you might face personal liability, will impact how much you pay in taxes, the level of paperwork and formality required, and even the ability to raise funding.

To help ensure that Durham entrepreneurs will make the right choice for their businesses, this article will cover some basic considerations with regard to some of the most popular organizational structures, including the Sole Proprietorship, Partnership, Corporation, and the Limited Liability Company.

Sole Proprietorship

The most basic and most common business structure is a Sole Proprietorship. A sole proprietorship has no legally separate existence from the owner of the business. As a result, the owner may be held personally liable for all financial obligations of the business. Moreover, income and losses are taxed on the owner’s personal income tax return. Perhaps the greatest advantage of a sole proprietorship, however, is that there are extremely few formal requirements for starting and maintaining such a business, and owners therefore have greater control and flexibility in managing its operations. 

Partnership

Another basic form of business structure is the Partnership. Much like the sole proprietorship, a partnership is a very basic legal entity, and is most commonly defined as one in which two or more people agree to share in the management, or profits and losses, of a business. The primary disadvantage of a partnership is that each partner may be held personally liable for all financial obligations of the business. The primary advantages are again similar to those of the sole proprietorship: profits and losses pass through the company to the individual income tax returns of the partners, and starting and maintaining the business entails few formal requirements.

Partnerships come in two varieties: the general partnership, and the limited partnership. In the former, each partner manages the business and assumes liability for the debts and obligations of the company. A limited partnership, however, is made up of a limited partner or partners in addition to a general partner or partners. Limited partners serve as passive investors and have no control over the company, with the advantage that they may not be subject to the same personal liabilities as a general partner. 

 

In Part 2 of this post, we will look at Corporations and Limited Liability Companies.

Michael E. Kohagen is an attorney with Crabtree, Carpenter & Connolly, PLLC, in Durham, NC.

The Dangers of Texting & Driving - Facts & Statistics

"I think we can all agree: new technology offers many benefits - computers have allowed lightning fast data processing, the internet created a global world, and mobile phones provide us with convenience and a valuable safety tool.

Unfortunately, the law of unintended consequences almost always rears its ugly head when it comes to technological advances. In terms of cell phones, one of the most dangerous consequences has proved to be a rise in distracted driving." - Misha Safranski, MoneySavingPro

Click here to learn more about the dangers of texting and driving at MoneySavingPro.

You Should Know: Pedestrians Pay the Price for Distracted Driving

Bikers, Walkers Threatened By Increase In Distracted Driving

April showers have given way to May flowers, encouraging walkers and bicyclists to get out and enjoy the weather. Long walks and leisurely bike rides can be a perfect way to soak up the sun, but busy streets with distracted drivers can be an accident waiting to wreck a lovely day. Unfortunately, when drivers are distracted, pedestrians and bikers often pay the price. This month, you should know how to keep yourself safe while you enjoy the spring season.

Use marked crosswalks: Eighty-two percent of pedestrian deaths occur outside the crosswalk.

More Cars, More Walkers and Bikes, More Distractions = Higher Traffic Deaths

According to the Governors Highway Safety Association (GHSA), almost 6,000 pedestrians were killed in 2016 in traffic accidents. In 2015, more than 800 bicyclists lost their lives in motor vehicle-involved crashes. Pedestrian deaths shot up 10 percent between 2014 and 2015, bicyclist deaths by 13 percent – both more than any other category of traffic-related fatalities, according to National Highway Traffic Safety Administration (NHTSA). 

The cause of this deadly trend has been greatly debated, with different groups pointing to a stronger economy and hence more cars on the road, more people walking to work or for recreation, and distraction due to the skyrocketing use of smartphone technology. Meanwhile, most efforts to prevent distraction are focused on motor vehicle drivers and passengers rather than pedestrians and bicyclists.

Teens Account for 25 Percent Increase in Pedestrian Deaths Over Past Five Years

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Bicycle fatalities have risen sharply for adults (especially men) 20 years or older since 1975. Click for larger image.

Even if a person is not behind a wheel, they can be at risk if walking while talking on a cell phone or listening to music through headphones. Among kids, teens account for 50 percent of all pedestrian deaths in the United States, and unintentional pedestrian traffic injuries are the fifth leading cause of fatalities for ages 5 to 19. Older teens have accounted for a staggering 25 percent increase in pedestrian injuries in the past five years. Over half of all adults have been involved in a distracted walking encounter.

Tips To Stay Safe

Walking or bicycling are healthy for both people and the environment. Perhaps that is why we’ve seen a 60 percent increase in commuter biking during the past decade. But while bicycle deaths among children have thankfully decreased by 88 percent since 1975, deaths among bicyclists age 20 and older have more than tripled. Here are a few safety tips to keep in mind that will increase your chances of arriving safely at your destination, whether on foot or by pedal!

• Look left, right and left again before crossing the street
• Make eye contact with drivers of oncoming vehicles to make sure they see you
• Be aware of drivers even when you’re in a crosswalk; vehicles have blind spots
• Don’t wear headphones while walking or biking
• Never use a cell phone or other electronic device while walking or biking
• If your view is blocked, move to a place where you can see oncoming traffic
• Never rely on a car to stop
• Only cross at designated crosswalks (82 percent of pedestrian fatalities occur outside crosswalks)
• Wear bright and/or reflective clothing, especially at night
• Always wear a helmet while biking
• Walk in groups, if possible
• Follow all traffic laws and road signs, and signal to turn

This article appeared in our May 2017 "You Should Know" e-newsletter.

Teens 50% of All Pedestrian Deaths, Ages 5 to 19

Traffic deaths are up 6 percent since 2010, pushing U.S. road fatalities to the highest level in a decade. However, the percentage increase in pedestrian deaths is far outpacing those on the road, jumping 25 percent from 2010 to 2015. Walkers on smartphones, bicyclists ignoring traffic rules, coupled with distracted driving, are a deadly combination. 

Teens, who are much more likely to walk distracted with a mobile device, make up 50 percent of all pedestrian deaths ages 5 to 19.

Our recommendations: 

Make sure your children understand the importance of looking both ways before they step out onto a roadway. Point out the traffic lights to them and explain their significance. Also, if an intersection is equipped with a pedestrian light, point that out to them and make sure they understand what the illuminated symbols mean. Stand on the corner for a full cycle of the light and pedestrian signal to make sure your children understand how they work and who has the right-of-way when. Never cross against the light with your children even if there is no one coming or if others are doing it. You do not want to teach your children bad habits or to take unnecessary risks. Impress upon your children that even if they have the right of way they should still look and be cautious because you can never assume that drivers are paying attention. It only takes one misstep. And finally read our May newsletter and discuss it with your children. Stay safe out there.

Guy W. Crabtree is a partner with Crabtree, Carpenter & Connolly, PLLC, in Durham, NC.

You Should Know: The Warning Signs of Nursing Home Abuse

Choosing nursing home, assisted living or in-home medical care is complicated, difficult and often an emotional process. The last thing on your mind is the possibility that those responsible for the care of some of our most vulnerable citizens would abuse or neglect their patients. But it does happen all too often, which is why you should know the signs of elder abuse and how to find quality care for the older loved ones in your life

Protect the elderly in your life by learning the signs of elder abuse.

As U.S. Population Ages, Reports of Nursing Home Abuse also on the Rise

National data on cases of abuse in America’s 15,600-plus nursing homes and other elder-care programs is hard to come by. But several recent studies by government investigators, advocacy groups and the news media have chilling implications.

According to the National Ombudsman Reporting System (NORS), 14,258 (7.6 percent) of approximately 188,599 complaints reported to state ombudsman programs in 2014 involved abuse, gross neglect or exploitation. Another study of nursing home staff throughout the country found that 36 percent had witnessed at least one incident of physical abuse of an elderly patient in the previous year, 10 percent committed at least one act of physical abuse, and 40 percent admitted to committing psychological abuse. It gets worse: A CNN special investigation aired in February found that the federal government cited more than 1,000 nursing homes for mishandling or failing to prevent alleged cases of sexual assault and abuse from 2013 to 2016.

Given that 1.4 million aging adults already live in nursing homes and that the number of Americans 65-plus will double from 2010 to 2050, this issue will only become more pressing.

Keep a Watchful Eye

Financial abuse is often overlooked, costing older Americans more than $36 billion a year.

Abuse can encompass a wide range of behaviors, including physical, mental, emotional, sexual, and financial abuse and neglect. Beyond the physical scars left by abuse, neglect and mistreatment have dangerous effects on the quality of life left to an aging person. Elders who have been abused have a higher risk of early death compared to those who have not been mistreated. If your loved ones are in a nursing home or other elder care program, watch for these warning signs:

• Broken bones or fractures
• Bruising, cuts or welts
• Bed sores
• Frequent infections
• Signs of dehydration
• Mood swings and emotional outbursts or unusual depression
• Reclusiveness or refusal to speak
• Refusal to eat or take medications
• Unexplained weight loss
• Poor physical appearance or lack of cleanliness
• Caregivers that do not want the patient to be left alone with others
• Sudden changes in financial situation or missing personal items

Protect Your Most Vulnerable Loved Ones

For a family member or caregiver choosing a care facility, the risk of abuse can be overwhelming and traumatic. The best way to prevent elder abuse is to choose the right care facility, which is not always easy given location or financial constraints. Nevertheless, here are factors to consider:

• Talk to residents or other patients. Observe their physical well-being and behavior. Also visit with residents’ families if possible, and learn whether they have experienced problems with the facility.
• Avoid facilities that have restricted access.
• Meet with key personnel (nurses, aides, social workers, administrators and doctors).
• Read contracts carefully before signing and look for a forced arbitration clause. The rights of your loved one may be denied even if they are abused.
• Visit frequently. Vary your visits to different times of the day and evening to assess the care provided during the day, night, weekends and holidays.
• Trust your gut. Pay attention to whether residents appear clean, well fed and free of bruises or other wounds. Also note if the environment is peaceful and feels safe.
• Document in writing the details about any problems or concerns.
• Compare facilities. Look up state survey reports here.

This article appeared in our April 2017 "You Should Know" e-newsletter.