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Important Issues Opening A Business

What is Best Legal Entity for Me?

One of the first decisions a business owner faces is choosing the best business entity for their organization. This is a crucial decision because it has far-reaching legal and tax consequences. At the starting point, you may be wondering, how do I choose between an LLC and a Corporation? What about a sole-proprietorship? Do I need to incorporate a business for a one-time project?

To choose the right entity, there are at least eight considerations you should make regarding business entity selection.
  1. Cost
  2. Liability risk
  3. Taxes
  4. Possibility of getting income
  5. Control
  6. Getting funding
  7. Ease of maintenance
  8. The State of incorporation.

What types of business entities exist?

Corporations 

A corporation is a legal entity separate and distinct from its owners. Corporations are granted most of the rights and responsibilities that individuals possess. Corporations can enter into agreements, loan and borrow money, sue and be sued, hire employees or independent contractors, own assets, and pay taxes. The corporation can be organized as C-Corps or S-Corps. 

C-Corporations are subject to double taxation. This means that they pay taxes on their income and shareholders pay taxes when dividends are paid.  S-Corporations are special tax treatment corporations that are not subject to double taxation. S-corporations are also known as pass-through entities. This means that taxes are only paid when a shareholder receives dividends.  To be treated as an S-Corporations an entity must make an express request with the New York Tax Department. 

Limited Liability Companies 

An LLC is a form of business organization formed by one or more persons who have limited liability for the contractual obligations and other liabilities of the business. A Limited Liability Company is a hybrid form that combines the limited liability benefit of a corporation with the operative flexibilities of a partnership. 

Partnerships

A partnership is a form of a business organization that requires no formal act and no express agreement. According to the law, there is a partnership where two or persons carry business as co-owners sharing costs and benefits.  When it comes to taking on business ideas or projects with another it is a best practice to put the terms in writing and to be very clear about intent, costs, or benefits, otherwise, partners can be liable beyond their expectations or they can be involved a venture unwanted or unanticipated. 

Limited Partnerships 

Limited partnerships or LLP are a form of business organization where there is a partner fully responsible for the business and other partners whose liability and responsibility is limited. An LLP as an organized business entity must be created by filing a Certificate with the New York Department of State. 

 

The Law Office of Giselle Ayala Mateus Can Help You!

The election of the business structure that fits the needs of your business is one of the most important decisions you will make as a new business owner or entrepreneur. For this purpose, the Law Office of Giselle Ayala Mateus can help you, guide you in regard to the ups and downs of each option, give enough you enough elements to make a smart decision. To begin, schedule now, a free consultation!

How many managers or directors do I need for my business?

The Board of a Company is the Basis of Good Governance

When a new business is formed, entrepreneurs ask attorneys: "how many directors should I have?". Others may also ask: "since this is a single-owner company do I need directors or managers?". The reality is that if you want to look professional and trustworthy before customers, investors, and strategic partners, you should have a board of directors or at least a clear structure of corporate governance. If you have a single-owner company, you can have a single-member board. 

Corporate governance speaks of the company's organizational structure, where decisions are made after consideration of benefits and costs, advantages and disadvantages, and the company's policies. Corporate governance exists for purposes of transparency, security, diligence.

Regarding the number of members that a board of directors or managers should have, it is always better to have an odd number to avoid deadlock. Deadlock is the circumstance where two directors or managers do not agree regarding the company's relevant decisions, and there is no third member to serve as a tie-breaker. Even companies with only one member should consider having a team of managers or directors. The idea is to give the company a clear structure, promote the discussion of decisions, and demonstrate diligence. 

What would happen if the only member of the company is another entity?

Whether the company has one or more members having an odd number of managers or directors is always the best. If a company has a single owner, and that owner is another entity with several owners or directors, one must understand how that entity makes decisions.  If the owner of a company (Company A) is another company (Company B), it is important to understand that Company B as the single owner of Company A, makes all decisions through the persons that manage it. This means that a board of directors or the managers of Company B will decide the course of Company A. In this case, Company B may want to have an odd number of directors or officers to avoid a deadlock. In the end, what matters is the number of human beings deciding the destiny of the company. 

How the owners of the company elect the directors or managers? Is it possible to avoid a deadlock?

The best strategy to avoid deadlock is to have an odd number of directors or managers. Additionally, to have a balanced board, one that makes decisions considering the interests of all the owners of the company, each owner of the company should have the possibility to elect at least one member of the board.  In the case of a company with two owners, an option is to have each owner elect at least one director of their choice and agree on the election of a third member who is independent and will serve as a tie-breaker. Especially in this scenario, it is important to pay close attention to the terms of the company's internal agreement and understand how will be elected the tie-breaker. 

Two illustrate the importance of a clear agreement regarding a tie-breaker director's election a recent Delaware can help us. In Franco v. Avalon Freight Servs, LLC, 2020 Del. Ch. LEXIS 359, the company center of the company was Avalon Freight Services LLC ("Avalon"), a maritime freight transportation services provider owned by a single member, GH Channel Holding LLC ("Holding"). Holding is governed by an LLC agreement (the "Holding LLC Agreement"). The Holding LLC Agreement stated that ownership and control would be distributed evenly between Harley Franco and Greg Bombard. Franco and Bombard being the two sole members of Holding's board of directors, have equal control over Avalon's sole member. 

Franco and Bombard also agreed to control Avalon equally. Accordingly, under the Avalon LLC Agreement, Avalon would be managed by a board of five directors, two aligned with Franco, two aligned with Bombard, and one tiebreaker director. Additionally, according to the Avalon LLC Agreement, the fifth director ("Houghton") would be mutually agreed upon and appointed by Bombard and Franco. 

Later in their endeavor, Bombard and Franco were in deadlock, and relevant to this analysis, disagreed about replacing or not the fifth director. While Franco disagreed that Houghton should continue to serve in that role, Bombard wanted Houghton to retain his position. As a result of the conflict, Franco filed a lawsuit seeking a declaration that given his dissatisfaction with Houghton, his position should be vacated, and Franco and Bombard should mutually agree on a new person to fill the position. However, the Court of Chancery of Delaware denied Franco's petition and explained the following:

  • Limited liability companies (or any other when it comes to corporate governance) are creatures of contract, which means that disputes among conflicts between its members or owners are decided based on the terms of the parties' bargained-for agreement. Accordingly, the role of the court is to interpret the contract and effectuate the parties' intent. 

  • When a Delaware court interprets any contract, the goal is to prioritize the parties' intentions as reflected in the four corners of the paper, the written agreement, and not external factors. Additionally, Delaware adheres to the objective theory of contracts so that the agreement's language is interpreted as it would be understood by an objective, reasonable third party. 

  • Under the Avalon LLC Agreement, Franco and Bombard agreed to elect a fifth tie-breaker board director mutually. The agreement's plain language did not require that Franco and Bombard continue to agree, nor did it provide for any mechanism by which they should or could periodically evaluate their agreement.

'Certainly, Franco and Bombard could have drafted it that way, by requiring that "the fifth director shall be mutually agreed upon at all times" or by providing that they must "continue to mutually agree" on Houghton's appointment.' Avalon Freight Servs. LLC, 2020 Del. Ch. LEXIS 359, *7

  • By allowing any of the two, Franco or Bombard, to unilaterally displace the tie-breaker director, the court would have allowed one side to take control of the company. That situation would have forced Houghton to take the side of that threatening to remove him.

Finally, regarding the importance of tie-breaker in two-owners companies, the court explained: 

Sophisticated parties who co-own a company in which ownership is closely tethered to control often include tiebreaker provisions as an ex ante dispute resolution mechanism, to prevent deadlock which may lead to dissolution. In one such mechanism, the owners have equal voices on the board, and give a swing vote to a third-party tiebreaker director. In the event of deadlock, the tiebreaker director can consider the company's best interests without being beholden to either side, constrained by fiduciary duties but free of the owners' competing interests. The presence of a tiebreaker director may also inspire the owners to manage their investment through cooperation and compromise, without resorting to the tiebreaker. Avalon Freight Servs. LLC, 2020 Del. Ch. LEXIS 359, *9

Key Take-Aways 

  • To promote transparency, security, and good corporate governance, all companies should have a board of directors. 

  • The owners elect the number of directors. However, it should promote the participation and recognition of all owners. 

  • The number of directors should be an odd number to avoid a situation of deadlock. 

  • The rules governing the election of directors should be clear for all the parties because it is a contract between the owners of the companies, and it will be strictly construed in the context of litigation. 

Your Business Needs an EIN

After a business is established, whether it is a corporation, a limited liability company, a sole-proprietorship, etc., it is necessary to take additional steps to hire employees and be in full compliance with the law. To hire employees, a business needs an Employer Identification Number.

An Employer Identification Number (EIN), also known as Federal Tax Identification Number, is a digit assigned by the Internal Revenue Services and used to identify a business entity. An EIN may be assigned to entities who ave employees and to others that don't. EINs are assigned to, sole proprietors, corporations, partnerships, non-profit associations, trusts, estates of decedents, government agencies, and certain others.

To assign an EIN the IRS identifies the responsible party for tax purposes and assigns one number per responsible party. The responsible party is the true principal officer of a business, or a general partner, a grantor, an owner or a trustor, who controls, manages, or directs the applicant entity and the disposition of its funds and assets. In this particular case, only natural persons, individuals may act as the responsible party. The only special case where an entity is the responsible party is in the case of government agencies.

Before applying for an EIN an entity must have been appropriately created and organized. Although you may apply online, by fax or by mail, it is always advisable to get legal counsel in regard to all the compliance aspects of your business. If you have a question, or there is an issue of your interest you would like to address, feel free to write to [email protected] Additionally, Ayala Mateus provides legal research, consulting and counseling services focused on providing the answers clients need to make informed choices.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Readers of this website should contact their attorney to obtain advice with respect to any particular legal matter. No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.

You Incorporated Your Business, What's Next?

After selecting a corporate entity for your business, coming to an agreement with your partners, and submitting all the necessary paperwork with the Department of State, your business entity will finally come to life. However, this is not the last step you take before your entity is fully organized. Now, it is necessary to take additional steps to elect directors and officers, organize your books, select a fiscal year, ratify contracts, make a decision about the compensation of those at the executive level, among others. These next steps can feel overwhelming, but if you have a clear idea of what those steps are, it will be easier to complete them.

The first organizational meeting

Following the formation of a corporation, the incorporator must hold a meeting to approve the by-laws and elect the directors. In the beginning, there can be one or more incorporators. The incorporator is the first shareholder that the corporation will have.

If there are more than one incorporators they can meet in person or by means of a call conference. If they decide to meet in person, the meeting can be held in New York or any other place as it is agreed to. If the meeting will be held at a place other than the principal office of the corporation, proper notice must be given, at least five days before the date of the meeting. Once the directors have been elected and the by-laws have been approved, the incorporator has no further duties. 

If the business is an LLC the first meeting will be held to decide whether the entity will be managed by its members or by executives elected by the members. In addition to that, the LLC members will need to adopt an operating agreement. The by-laws or the operating agreement set the rules of the internal affairs of the corporate entity, i.e. conflict of interests rules, voting, decision-making powers provided to directors, fiscal year, sale of shares, preference rights, among others.

 

The first meeting by the Board of Directors or the Managers of the LLC

The entity's existence is independent and separate from its members or shareholders. Thus, following the formation of the entity, its directors or managers may be interested in meeting to take other important decisions.
 

1. Ratification of the actions of the incorporator

All contracts or agreements entered into by the incorporator, before the entity is created, have no legal consequence for the corporate entity. This means that the entity has no duties or rights in regard to those transactions. Accordingly, once a corporate entity has been created, any contracts or agreements entered into on its behalf must be ratified. By reviewing and ratifying the actions of the incorporator the directors will make sure that all transactions are valid, there are no deficient authorizations and there will not be grounds for breach of contract allegations.
 

2. Initial resolutions

There may be issues that only come up at the beginning of the formation of an entity and which do not need to be part of the by-laws. To resolve those issues, directors can make initial resolutions memorialized in writing. These resolutions have no special formalities. However, it is important to keep in mind that all decisions made by the board are memorialized, so that directors, officers, or managers are held accountable according to their fiduciary duties.
 

3. Electing a fiscal year

A major decision that the board makes is electing a fiscal year. This decision will affect the entity's books as well as its tax and its financial obligations. A good choice will require, on the one hand, to understand that the IRS and other collecting agencies constantly require information about the company's fiscal years. In most cases, it is the entity's obligation to decide whether the fiscal year will be the calendar year or another. On the other hand, the election of the fiscal year usually involves the participation of accountants, a tax attorney, and financial advisors who understand the business that will be carried out by the entity.
 

4. The compensation of officers and other executives

Finally, during the initial meetings, the Board will be focused on assigning many roles and jobs, so that the company can start operations soon. As part of that process, the Board needs to decide the compensation and the contractual terms upon which officers and other executives will perform. Unlike other kinds of roles, which can change hand more easily, officers and executives are usually elected considering their years of experience, special qualifications, managerial skills, among others. Thus, defining the terms of officers and executives is something that the Board should do as soon as possible, once the corporate entity has been established.

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