PRACTICE AREAS

 

BUSINESS LAW

A successful business requires a strong foundation. We assist with the formation, financing, governance and succession planning of your closely-held business, partnership, LLC or non-profit.

Corporation

What it is?

  • A corporation is a legal entity that is usually formed to create legal independence from the people who form the corporation.  When correctly managed and operated, the shareholders owning the corporation should have “limited liability” which means that if the business fails or is sued, creditors cannot pursue the shareholders for personal liability.  Therefore, the shareholders liability is limited to their investment.
  • A corporation is managed by its Officers and Board of Directors, who are elected by the shareholders
  • A corporation has perpetual life, meaning that the corporation can continue its operations beyond the lifetime of any of its shareholders
  • A corporation is subject to “double” taxation because the corporation pays taxes on its income.  In addition, the shareholders pay tax on any dividends or other income they receive from the corporation.  This can be avoided by electing to become a S-Corporation to receive pass-through tax treatment.  These tax issues should be addressed with a certified public accountant.
  • Corporations can be formed for approved non-profit purposes to avoid tax liability

Formalities to Set-Up

  • As an initial step, the corporation files Articles with the Secretary of State.  The Articles of Incorporation give a basic framework for how the corporation will be run, the time of business it can engage in and the amount of stock it is authorized to issue.
  • Contemporaneously or soon thereafter, the corporation prepares Bylaws which provide a more detailed set of procedures for meetings, shareholder rights and responsibilities and actions that can be taken by the Board of Directors and Officers.
  • The initial Board of Directors will be appointed either in the Articles of Incorporation or by the incorporator
  • Shares of the corporation should be issued

Maintaining Corporate Formalities

  • In order to maintain the corporation properly, many corporate formalities need to be adhered to, including:
    • Keeping corporate assets in separate accounts from personal assets, avoiding the commingling assets between the corporation and its stockholders, and maintaining minutes of annual meetings
    • Conducting regular meetings by the shareholders and Board of Directors and keeping proper record of the minutes of those meetings
    • Maintain records of the current shareholders and the stock certificates that have been issued

Partnership

What it is?

  • A partnership is created between various people who want to co-own a business
  • While the partnership must report to state taxing authorities and the IRS, the partnership itself is not a taxable entity.  However, the partners will be taxed for the profits and losses of the partnership
  • The partners are, jointly and severally, personally liable for the debts and taxes and any liability as to errors and omissions of the partnership for an unlimited amount
  • The partnership normally dies when a partner dies

Formalities to Set-Up

  • A partnership should be documented by a partnership agreement, outlining the agreement between the partners relating to the terms of the amount of the investment, form of payout of proceeds, addition of partners, termination of partners or partnership and other expectations of the partners

LLC

What it is?

  • An LLC is a hybrid between a partnership and a Corporation, in that it is subject to “pass-through” tax treatment of a partnership with limited liability to its shareholders
  • An LLC can be managed by one or more of its managers or by its members

Basic Protections

  • Provides limited liability to the shareholders

Formalities to Set-Up

  • Requires Articles of Organization to be filed with the Secretary of State
  • The LLC must adopt an Operating Agreement which outlines the management of the LLC
  • Membership certificates should be issued

Maintaining LLC Formalities

  • Much like a corporation, in order to maintain the LLC properly, many formalities need to be adhered to, including:
    • Keeping LLC assets in separate accounts from personal assets.  Do not commingle assets between the LLC and its members
    • Conducting regular meetings by the members and/or managers and keeping proper record of the minutes of those meetings
    • Maintain records of the current members and the membership certificates that have been issued

The material available on this website is intended for informational purposes in California only, and does not constitute legal or other professional advice.  Reading this website or contacting Vergari & Napolitano does not constitute the forming of an attorney-client relationship, which can only be established by entering into a written retainer agreement.

While we intend to make every attempt to keep the information contained in this website current, we do not promise or guarantee that the information is correct, complete, or up-to-date.  Vergari & Napolitano is not responsible for any third-party contents which is accessible through this website.