Me and my friend are currently in the process of trying to start a tshirt company. We would like to split the profit 50/50. I went to the IRS.GOV website to register for an EIN but we have to decide on choosing between an LLC and a partnership and don't know which one to choose. What steps do we have to take to make a legal agreement in regards to how we will be paid, the way business will be conducted, etc. We also have logos which we currently have ownership over. What do we have to do to protect our designs regarding trademarks and copyrights? We also need a place to store our merchandise, and were considering storing them in an empty room I currently have in my home. We assume we'd have to get it inspected and approved by my HOA among other things. Please advise, thank you.
You raise a variety of questions. First, you are better off using an LLC. An LLC with two or more persons will be taxed as a partnership, with each of you reporting your share of profits and losses on your personal returns. You enjoy some limitation of liability with the LLC that you do not get with a partnership. You and your partner can govern the company jointly, too, as in a partnership, or one of you can be the managing member. So my advice is to form an LLC and register with the IRS as an LLC. Discuss with your accountant the option of forming an S corporation instead or having your LLC taxed as an S corporation.
The agreement as to payment etc. comes in the form of an operating agreement. The Florida statute fills in some blanks in the absence of an agreement, but you really should have a written operating agreement that determines sharing of profits, responsibilities of each of you, your ownership interest, what happens if one of you wants out, etc.
As to trademarks, they are best registered with the U.S. Patent and Trademark Office. You get some common law protection without registration and you could register in Florida alone, but to have real protection you need to register with the USPTO. Designs can be copyrights by registration with the U.S. Copyright office in Washington, DC. Each trademark will cost a registration fee of $275 to $325 for each class in which it is registered (a class refers to a category of goods or services--you may only need one class or you may wish to register in more than one), plus attorney's fees if you seek the assistance of counsel (which I recommend). Copyright registration is much less--less than $50 per registration plus any attorney fees.
Whether you need permission of your HOA depends on the Declaration, Bylaws, and rule and regulations of the HOA. Chances are that if you are just storing things in the room, you may not need their permission. If you are operating the business from home, you may have some issues with the HOA, again depending on their particular set of rules.
Mr Sprang offers a nice overview of some of your business issues. From a tax perspective you cannot get an EIN for an LLC until you form the LLC under state corporate laws. An LLC offers liability protection a partnership does not but under federal laws the LLC is treated as if it were a partnership. For the LLC you need to form this entity and draft what is called an operating agreement to lay out the terms of your agreement. Finally, be aware that the choice of entity issue is one that is complicated. It may be that an S corporation may be a better option. Because of this and the fact that you have many legal operational issues, you should meet with a tax and/or corporate or trademark attorney to do this right. If you fail to do this you may set up the wrong entity with lousy documentation that will haunt you and cost you more in the end. Be a smart businessman and get good legal counsel BEFORE you do anything that will hurt you in the end.
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Think about whether you really want to have a 50/50 partnership. If one of you is the promoter, the sparkplug that makes it go, he should get 51%. It will save a lot of arguments. If you decide on a 50/50 LLC, you must hire a lawyer to prepare an Operating Agmt for you. Do not accept the standard boiler plate but ask for a form based on a partnership Agmt. Be sure it covers what happens upon the the three D’s: Death, Disability and Disagreement. You would be amazed at how many LLC’s I see either without an OA or with a wholly inadequate one. If you don’t do it, your next AVVO question will be “Joe is not doing any work; how can I get rid of him?” The answer will be “You can’t, unless your OA authorizes it.” The members must have the right and power to expel any member who is not pulling his weight, without the LLC having to make a heavy payment to him.
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