What Is Incorporation?
Incorporation is the legal process used to form a corporate entity or company. A corporation is the resulting legal entity that separates the firm's assets and income from its owners and investors.
Corporations can be created in nearly all countries in the world and are usually identified as such by the use of terms such as "Inc." or "Limited (Ltd.)" in their names. It is the process of legally declaring a corporate entity as separate from its owners.
- Incorporation is the way that a business is formally organized and officially brought into existence.
- The process of incorporation involves writing up a document known as the articles of incorporation and enumerating the firm's shareholders.
- In a corporation, the assets and cash flows of the business entity are kept separate from those of the owners and investors, which is called limited liability.
- Though incorporation, a company's tax liability is also treated differently that that of a sole proprietorship or partnership.
- Incorporating makes it easier for a business to sells shares, raise capital, and divest ownership from a portion of the business.
Incorporation is the broad term to describe a business registered with a state to become a separate legal entity. That business entity often is owned by shareholders (even if it is a single-member owned corporation) that may also be overseen by a board of directors.
A company does not need to be incorporated to operate a business. Business owners may elect to operate as a sole proprietorship or a partnership instead. These two legal business formations treat company debt and taxes differently than compared to an incorporated entity.
Another primary difference between legal entities and one of the most important reasons a company may want to incorporate is for the advantage of issuing stock. When a company incorporates, it gains the ability to share ownership of the company by issues shares of stock. Whereas a sole proprietorship or partnership is usually only owned by those operating the company, incorporating allows a business owner to sell an ownership stake in part of the business.
A business may also choose to incorporate as a corporation of a limited liability company. The filing requirements for either depend on the state the business is filing in, though each type of incorporated entity will have its own separate form.
The Creation and Organization of Corporations
Incorporation involves drafting "articles of incorporation," which lists the primary purpose of the business and its location, along with the number of shares and class of stock being issued if any. A closed corporation, for instance, would not issue stock. Companies are owned by their shareholders. Small companies can have a single shareholder, while very large and often publicly traded companies can have several thousand shareholders.
As a rule, the shareholders are only responsible for the payment of their own shares. As owners, the shareholders are entitled to receive the profits of the company, usually in the form of dividends. The shareholders also elect the directors of the company.
The directors of the company are responsible for day-to-day activities. They owe a duty of care to the company and must act in its best interest. They are usually elected annually. Smaller companies can have a single director, while larger ones often have a board comprised of a dozen or more directors. Except in cases of fraud or specific tax statutes, the directors do not have personal liability for the company's debts.
According to the U.S. Census Bureau, roughly 50,000 corporations submit business licenses each month. In November 2022, just over 47,000 applications from corporations were submit.
How to Incorporate a Business
There are many steps to incorporating a business, each with its own degree of importance. Below are the following decisions and actions a business owner must take to incorporate.
Decide Where to Operate and Comply With Local Laws
Prior to incorporating, a business should ensure it is adhering to local business licensing and zoning laws. This includes having the appropriate permits or licenses to operate, though not all businesses may require these.
By extension, this may have implications in to where you operate and ultimately decide to incorporate. It's sometimes best to incorporate in the state that the business is operating in as there are different types of applications and filing requirements to file elsewhere. For example, incorporating in a different state may require you to file a foreign corporation. On the other hand, filing in a different state may reduce the fees and reporting requirements needed to establish and maintain the corporation.
Many companies choose to incorporate in the state of Delaware as the state does not impose income tax on entities that do not do business in the state.
Choosing a Business Structure
One of the more fundamental, important decisions to make is to establish the business structure. The most common forms of business are a sole proprietorship, partnership, corporation, and S corporation. An LLC is also a common business structure allowed by state statute.
A business owner should choose the business structure that makes the most strategic and operational sense for the long-term. As mentioned above, incorporated entities can issue stock, a very easy way for owners to sell part of the business for personal profit. There are also very considerable tax and liability considerations to be had based on the business structure chosen.
For those unaware of the best course of action, it's usually recommended to consult a business attorney to discuss business structure options. In this article, more of the specific benefits and advantages of incorporating a business are discussed below.
Select a Unique Name
To incorporate, your business name can not be the exact same name as another corporation in your local area. You also want a unique name to avoid trademark infringement and branding confusion. When selecting that unique name, consider that incorporated businesses often end in incorporation abbreviations (i.e. "Inc.").
There are online directories that can be used to search existing business names. These directories allow users to input intended names to see whether they are available. Some states may offer business owners going through the incorporation process the option to reserve an available name for a period between 60 and 120 days depending on the state.
Select Registered Agent
A registered agent is a person who has the right and ability to accept paperwork and mail on behalf of the company. States will require that a company name a local registered agent, as the state will need a contact of someone who will handle official business as items arise.
The registered agent does not need to be the business owner. For example, a company's business attorney can serve as a registered agent as long as they have an office within the state the business is being incorporated in. Should the registered agent move out of the state in which the business is incorporated in, the company will need to choose a new agent. There are also online legal services that can act as your registered agent (in return for a fee).
Draft and File the Articles of Incorporation
As discussed above, the articles of incorporation include many important aspects of a company including the business name, location, information on public or private shares, the information of the registered agent, and the name of the incorporator. Each state has its own filing requirements for the articles of incorporation. There will be a filing fee to submit the article of incorporation with the state; in most cases, this is several hundred dollars.
Draft Corporate Bylaws
In addition to drafting the articles of incorporation, companies must draft bylaws to outline how your compensation is structured, how shares are issued, what voting rights are, and how the board of directors operate.
The corporate bylaws are a more detailed set of instructions on how to operate a business. Very often, a company may refer back to its bylaws to better clarify the best course of action to take as it runs. Some states won't require a copy of these, but they may be required by other entities (i.e. financial institutions may require bylaws when setting up a bank account). In addition, bylaws may be revised to meet the adapting nature of a business.
Host Board Meetings
At the first initial board meeting, the board members will be tasked with performing an important series of actions. At that first meeting, the board members should formally vote to adopt the articles of incorporation and bylaws, authorize and issue shares of stock, elect officers, and make other operational decisions. It is also important that the meeting minutes are taken as certain entities may require a copy of notes as needed.
Complete Additional Requirements
There are other operational tasks a business owner should take as it becomes incorporated. Though independent of the actual incorporation process, companies should apply for an employer identification number, create a bank account, file federal taxes, announce the creation of your corporation (if applicable), and file annual reports as needed.
Though incorporation could technically be achieved all in a single day, it usually takes around two months (roughly six weeks) to complete the entire process.
Advantages and Disadvantages of Incorporation
Pros of Incorporation
Incorporation effectively creates a protective bubble of limited liability, often called a corporate veil, around a company's shareholders and directors. As such, incorporated businesses can take the risks that make growth possible without exposing the shareholders, owners, and directors to personal financial liability outside of their original investments in the company.
Because an incorporated business can issue and trade shares, this allows for easy transfer of ownership to another party. Whereas a sole proprietorship must sell the entire company to financially profit from disposing of company equity, owners of a company can still retain primary ownership but sell part of their shares for personal profit. In addition, shares traded on public exchanges are much more liquid markets compared to other means of selling a business.
An incorporated business may achieve a lower tax rate than on personal income. Incorporated businesses often receive more lenient tax restrictions on loss carryforwards and may receive more favorable tax treatment for allowable deductions.
Cons of Incorporation
The primary drawback of an incorporated business is the operating constraints to maintain its incorporated status. Companies must adhere to their bylaws and must ensure it meets filing, reporting, and other ongoing requirements. An argument can be made that since an incorporated entity's tax filing is separate from any individual's, there is also an administrative burden angle when preparing multiple tax returns.
An incorporated business is usually at risk of double taxation. Consider an example of a corporation being assessed net income tax. Then, with after-tax proceeds, it makes a taxable distribution to a shareholder. This shareholder now has taxable income on funds that have already been assessed a tax liability.
Operating an incorporated may be more expensive based on the filing, reporting, and administrative fees. Companies must often meet public reporting requirements (such as getting their financial statements audited). There are also ongoing fees and regulatory charges to maintain their status on an exchange.
Last, an incorporated business may be considered less flexible in some ways compared to other forms of business. Once incorporated, a business must operate in accordance to its bylaws and articles of incorporation. In addition, it usually now has an entire board of individuals overseeing operations. It may be more difficult for the executives at an incorporated business to dramatically change business strategy or operational considerations.
Incorporation Pros and Cons
Protects owners from personal liability as the corporation is responsible for its own debts
May be much easier to raise capital as shares can more easily be sold
May be easier for owners to personally profit by selling partial stake in company as opposed to needing to sell full ownership
May receive some favorable tax treatment compared to other business structures
Often requires greater investment of time to meet reporting, filing, and regulatory requirements
May expose some funds to double taxation where both the corporation and shareholders are taxes on the same funds
May be a more expensive type of business structure due to fees and legal costs
Is usually less flexible compared to other structures as the company is bound by its bylaws and board
Is an LLC Better Than a Corporation?
The main difference between an LLC and a corporation is that an LLC is often owned by a smaller collection of individuals compared to a corporation. Each company has personal limited liability, though an LLC may be a cheaper option to form.
When Should You Start a Corporation?
Administratively, there are many benefits to changing a legal entity's status effective January 1; this change is the cleanest from a tax perspective. Operationally, it may make more sense to convert a company to a corporation when it is ready to raise more capital and make it easier for investors to infuse capital into the company.
Do I Need to Pay Myself After I Incorporate?
There are tax considerations to make regarding paying yourself a wage or salary as business owner as opposed to taking a draw or equity distribution. You are not required to do either when you incorporate. Should you incorporate as a multi-member LLC, you may need to make extra considerations on what you're able to pay yourself and when you're able to pay yourself.
Can an Individual Be a Corporation?
Also referred to as a single-member LLC, an individual can elect to be be taxed as an S-corporation as long as they file a Form 2553 and make the election for this tax treatment during an appropriately time part of the year (not right at the beginning of the tax year). You may also consider a OPC (one person corporation) that designates the single stockholder as a person, trust, or estate.
The Bottom Line
For more complex companies looking to raise more capital, have the owners avoid personal liability, and gain certain tax incentives, companies can opt to incorporate and operate using a different operating structure. Though incorporating is more expensive and requires more time to handle administrative manners, there are long-term, strategic advantages to moving on from being a sole proprietor or partnership.