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Bradley William Miller

Bradley Miller’s Answers

151 total


  • Would a small business acquisition asset sale be considered long term capital gain?

    Bradley’s Answer

    Generally speaking, the proceeds from asset sales are considered ordinary income and not capital gains. To get capital gains treatment you need to sell your interest in the underlying LLC.

    This all being said, you may want to talk to an accountant who is experienced with business sales. He or she can help you run through the various scenarios and tax consequences of each.

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  • Earlier this year my partner and I started a business. My partner filled out the forms... Where's my name on the paperwork?

    Bradley’s Answer

    In Ohio, the Secretary of State doesn't actually care who the owners of an LLC are. The names that you see on the paperwork filed to get the entity set up and that show up on the SOS website are 1) the statutory agent who will receive mail on behalf of the company, and 2) the incorporator, which is merely the person who has the authority to file the paperwork on behalf of the entity. Despite what some banks may tell you, neither of those have any relation to ownership in the company.

    The list of owners should be part of the operating agreement for the company. The list is normally set out with the names of all the owners and their ownership percentages. In addition, as an owner you should have signed the OA.

    Besides the list in the OA, ownership in a company can be evidenced by being on the business bank account and through tax returns. The tax returns for the company should show all the owners and their percentage interest.

    Because you are asking this question, are you concerned that your business partner is going to try to push you out? If so, it is critical that you get as much evidence as possible showing your ownership. You may also want to talk to an attorney to make sure you are taking all the steps necessary to maintain and be able to prove your interest should a dispute arise.

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  • Am I required to have a labor law compliance poster in my home if my business is a sole proprietor LLC?

    Bradley’s Answer

    No. This is essentially a scam by the poster company trying to get you to spend $94 for something you don't need if you don't have employees. Companies like this get a list of new entities that have been approved by the Sec. of State and send these official looking "notices" try to get you to buy their posters.

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  • Can I be sued for a non-paid invoice?

    Bradley’s Answer

    Yes, she can go after you for the full amount. By making your first payment you probably agreed to the terms on the invoice, even though you didn't technically "sign" anything.

    When you go to the store to buy a gallon of milk, the store has a price tag indicating what amount of money it will accept in exchange for the milk. When you hand the cashier a $5 bill you are agreeing to buy the milk at the price on the tag (and the cashier accepting your money is the store agreeing to sell you the milk at that price). Even though there is no written document, this is a contract. The store doesn't require you to sign anything, but the act of you giving them money in the amount of the price tag indicates your acceptance of that price term. It works the other way too -- once they take your money, the store can't go back and raise the price and ask you to pay more for the milk.

    So similarly, there is probably a contract between you and the class instructor based on the terms of the invoice you started making payments on. And if there is not a contract, and the spot in the class you took could have been used for someone else, she may be able to argue you are responsible for her damages (lost income).

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  • Can an Operating Agreement be signed years after company formation?

    Bradley’s Answer

    Yes. You can enter into an operating agreement at any time.

    I am curious as to why a client wants to see a copy of your operating agreement though?

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  • Am I responsible for sales and employment taxes that the previous owner of my business didn't file or pay?

    Bradley’s Answer

    The answer is "maybe" as it depends on various circumstances.

    - How was the purchase structured? Was it an asset purchase (you purchase a list of "things") or a stock purchase? With an asset purchase you typically pick and choose what assets and liabilities you take – the rest stay with the seller. When you purchase the stock of a company, you get both the good and the bad with the company.

    - Were these liabilities disclosed to you by the seller? Did you (ideally your attorney) conduct due diligence into the outstanding liabilities of the company? Basic due diligence into a company you are looking to purchase should include requiring the seller to disclose any outstanding liabilities to you, having them promise there are no additional liabilities they are aware of, and you obtaining a certificate or letter from the tax authorities stating that the company is up-to-date on all its tax liabilities. It is your responsibility, especially with a stock purchase, to make sure you know exactly what you are buying.

    - What does your purchase agreement say about outstanding liabilities of the company? Is the seller required to indemnify you for any unknown liabilities that arose from their conduct of the business? Because there may be some liabilities that the seller doesn’t know about at the time of the closing, most purchase agreements will include some sort of indemnification provision to protect you the buyer from “surprises.”

    - How long ago was the unpaid tax liability? There are time limits on how long the IRS or state tax department has to assess and collect upon tax liabilities.

    - Is successor liability being alleged by the tax agency? Some agencies have the ability to claim that, even though you are a new owner and may have a new business entity, you are really a successor to that business. This can happen if you conduct the same business in the same location as the seller. The agencies have this power so people can’t “sell” the business to a friend or family member in an attempt to escape liability. You can usually appeal a successor liability claim.

    There are too many variables to your situation to be able to give you any sort of answer, especially on an online forum such as this. You need to speak with a business attorney and have them analyze your situation for you. You will likely have to pay for this, but it is the only way to know whether you have some liability for these outstanding taxes.

    Best of luck.

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  • Could my e-commerce business form a L.L.C in Wyoming and have me (the owner) and mailing/management operations done in Ohio?

    Bradley’s Answer

    Yes, you could set up your company as a Wyoming LLC but be based in Ohio. If you do that, you will have to pay any WY fees for the registration and the upkeep of the entity. You would also have to file in OH as a foreign entity since you are based and doing business here. That requires a one-time filing fee. And you will be subject to OH income and sales tax requirements since you are located and doing business here.

    What is the benefit you are trying to achieve by initially filing in WY? Most of the time it is best to register your business in the state where you are located. There are some exceptions, but there is no need to make things more complicated than they need to be. Often the perceived "benefits" of registering in a different state are not as great as you think they are.

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  • Buying a business

    Bradley’s Answer

    It depends on how the deal would be structured.

    If you create your own business entity (LLC or corporation) and then just buy the assets of the business, you can pick and choose what you buy. That means you can buy desirable things such as the vehicles, customer lists, etc. but leave things you don't want like debts. If the debts are to the government (sales tax, payroll, etc.), then you may be labeled as liable through successor liability. You can fight the determination, but it is not an easy or cheap fight.

    If the business is operated by a company, such as an LLC, and you buy the company, then you would be buying the liabilities along with the business.

    If the business is operated as a sole proprietor DBA then everything is under your father-in-law's name. Here again it would depend on the nature of the debt whether they would get passed on to you or not.

    Note, this is a simplified explanation, and there are many other factors that can come into play such as personal guarantees and fraudulent transfer claims. You should hire with a business lawyer -- particularly one with experience helping people buy and sell business -- to help you with any transaction like this and advise you on your potential liability.

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  • Am I able to add people to my LLC in order to have the licensing of my business equipment be as much theirs as it is mine?

    Bradley’s Answer

    I agree that this is not something you can post an online question about and get an answer. You need to talk to a business attorney to discuss your options and make sure you do everything properly. Because you mention licenses, if you don't structure your deal properly you could retain liability that the licensor could use to go after you.

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  • Partnership Franchises Business: Parnter wants me to bring 100K as initial investment. I only have 50K. What should I do?

    Bradley’s Answer

    You need to talk to your business immediately and let him know your situation. It is imperative that you are upfront and honest, otherwise the business partnership is doomed to fail -- and probably fail quickly and horribly.

    Depending on how the conversation goes, you may want/need to talk to a business lawyer to help you work out an arrangement with your business partner.

    Both of these conversations should be done sooner rather than later.

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