The limited liability company may offer the best of both worlds.
An LLC is generally treated as a partnership for tax purposes. At the same time, the LLC's members, like corporate shareholders, are not personally liable for the debts of the business.
However, LLCs are not always the best form of entity, even for a closely held business. There may be circumstances in which a corporation or limited partnership is a more appropriate form.
A sole proprietorship is nothing more than a business in which an individual engages in business personally rather than by means of a separate entity such as a corporation. The sole proprietorship avoids many of the formalities and reporting requirements associated with other forms of business organization. However, the proprietor is personally liable for the obligations of the business, thus making a limited liability entity such as a corporation or LLC an attractive alternative.
Corporation (Including S Corporation).
A corporation is a limited liability entity, in that none of the owners (shareholders) are liable for the obligations of the corporation. The income of a corporation (other than an S corporation) is taxable, both by the federal government and California, at the corporate tax rate. Thus, a corporation and its shareholders are subject to "double taxation," because the corporation pays tax on its income and the shareholders pay tax on dividends received from the corporation, and the corporation is not allowed to deduct dividends as an expense. Double taxation may be minimized in certain cases by the payment of salaries to shareholders and by the use of shareholder loans. In addition, a corporation that retains most of its income may find the corporate tax structure beneficial because the marginal rates applicable to corporations are often lower than the marginal rates applicable to individuals.
Making a "S" Election - IRS Form 2553 Application
Qualifying corporations can ameliorate the effect of double taxation by making an S corporation election. If a corporation makes a valid S corporation election, then, for federal tax purposes, the corporation's net profits, losses, and tax credits are passed through (and taxed) to the corporation's shareholders, without being taxed to the corporation. Thus, S corporations are treated similarly, but not identically, to partnerships. There are important restrictions on the ability to qualify as an S corporation.
A general partnership is an association of two or more persons to carry on as co-owners of a business for profit that is not a limited partnership. A joint venture is an entity formed for a limited or temporary business purpose. Joint ventures have generally been treated as general partnerships under California law. However, LLCs may become the entity of choice for many limited purpose business ventures. A general partnership is generally not subject to federal or California income or franchise tax. For federal tax purposes, a partnership is any joint enterprise other than a trust or estate that carries on a business and is not organized as a corporation under state law.
A limited partnership is a partnership with one or more "limited partners" (partners who do not participate in the control of the business and who are not personally liable for the obligations of the partnership), and one or more "general partners" (partners who actively engage in the management and control of the business and who have unlimited personal liability for the obligations of the partnership). Limited partnerships formed in California on and after July 1, 1984, are governed by the California Revised Limited Partnership Act (Corp C A?A?15611-15723). Limited partnerships formed in California before July 1, 1984, that have not elected to be governed by the new act are governed by the California Uniform Limited Partnership Act (Corp C A?A?15501-15533).
A limited partnership, like a general partnership, is generally not subject to federal or California income tax. Unlike a general partnership, a limited partnership is subject to an annual franchise tax of $800.
Limited Liability Partnership.
Many states have statutes authorizing the formation of limited liability partnerships (LLPs). An LLP is a form of general partnership in which the liability of each partner may be limited. Under most LLP statutes, a partner is relieved of liability for the negligence, wrongful acts, and misconduct of another partner and of employees and agents of the LLP. However, partners are not relieved of liability for their own negligent or wrongful acts or misconduct, or for the negligent or wrongful acts or misconduct of any person acting under their direct supervision and control. In most states, partners of an LLP remain liable for the contractual obligations of the partnership.
Limited Liability Company.
A limited liability company (LLC) is an unincorporated business organization whose members do not have personal liability for the debts of the LLC. LLCs formed in California are governed by the Beverly-Killea Limited Liability Company Act (the Act) (Corp C A?A?17000-17655). A domestic LLC with one member is automatically disregarded for federal and California tax purposes unless the LLC files an election to be taxed as a corporation. Reg A?301.7701-3. A domestic LLC with two or more members is automatically classified as a partnership for federal tax purposes unless the LLC files an election to be taxed as a corporation. Reg A?301.7701-2. An LLC doing business in California must pay an annual franchise tax plus a statutory fee for any year in which the LLC's total income is $ 250,000.00 or more. Rev & T C A?17942(a)-(b).
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