Last week, The Wall Street Journal broke the story that one of President Trump’s top lawyers, Michael Cohen, had arranged to pay $130,000 in hush money to a former porn star, Stephanie Clifford (stage name Stormy Daniels), in October 2016 as part of an agreement to stop her from publicly discussing an alleged sexual encounter […]

We’ve written before that a Tardy S Election Is No Reason To Freak Out. In that article, we discussed making a late federal S corporation election under a 2013 Revenue Procedure that permits corporations to obtain relief for a late S election that is made within 3 years and 75 days from the effective date […]

In a previous article on why a Tardy S Election Is No Reason To Freak Out, we discussed making a late federal S corporation election under a 2013 Revenue Procedure that permits corporations to obtain relief for a late S election that is made within 3 years and 75 days from the effective date of […]

The Tax Cuts and Jobs Act (the “Act”) has passed both houses of Congress and only awaits President Trump’s signature to become law. President Trump may wait until January to sign the bill into law,[1] but when he does, the Act will have a substantial impact on S corporation shareholders. Among other things, the Act: […]

We are asked to incorporate and perform other work for ventures related to cannabis with some frequency, especially now that California has joined the expanding group of states that have legalized marijuana for at least some uses. We have, however, declined all such work, and will continue to do so, for the simple reason explained […]

In our Comprehensive Guide to State S Election Requirements, we noted that there are only two states—New Jersey and New York—that definitely still require something specifically delineated as a separate state S corporation “election” to be filed for the federal S corporation election to be recognized in those states. Under New York law, the shareholders […]

In our Comprehensive Guide to State S Election Requirements, we identified the few remaining states that still require S corporations to file separate elections, or something else, for the federal S corporation election to be recognized in those states. New Jersey is one of only two states (New York being the other) that definitely require […]

Shareholders of small business corporations that meet certain criteria may elect to have the business be treated as an “S corporation” and receive favorable federal “pass-through” tax treatment to avoid double taxation on income, once at the corporate level and again at the shareholder level.[1] The federal S corporation election is made by filing Form […]

When setting up a new business entity for a client, we sometimes get asked to provide an attorney opinion letter to support the issuance of an Extended Validation (EV) SSL Certificate.  We typically discourage clinets from this, because an opinion letter adds a significant and unnecessary cost to the already expensive process of obtaining an […]

In a recent article (Why Roll the Dice with Series LLCs), we discussed why we don’t form series LLCs in light of the risks and as-yet unanswered questions surrounding this relatively new business form. One of the uncertainties concerns the extent to which a series LLC may protect against piercing the corporate veil to shield […]

We work with entrepreneurs who are forming small, closely held corporations.[1] Because corporations are “solely creatures of statute,”[2] they are generally said to have only those rights, powers, and liabilities provided for in the corporation statutes under which they were formed. In many respects, however, those statutes are drafted to provide “corporate norms, with their […]

We often get asked if we form series LLCs. The short answer is “no,” and we’ll explain why in this article. Let’s start at the beginning. What is a series LLC? Our favorite description of a series LLC is that it is “almost an LLC within an LLC.”[1] One of the only court decisions that […]

We have read more than a few articles about the benefits of incorporating in Nevada even if the corporation is not planning to do any business there. We don’t get that at all. It is expensive to form and maintain a corporation in Nevada, especially compared to Delaware, which is the usual choice if you […]

We’re sure most of you are familiar with Moneyball, either the original book by Michael Lewis (subtitled The Art of Winning an Unfair Game, which is somewhat fitting for this article) or the movie adaptation starring Brad Pitt. Both tell the story of Billy Beane, who has been the general manager and/or executive vice president […]

We’ve written before about potential liability for unpaid wages in New York, but the problem just got more serious.  It’s a serious corporate booby trap, especially for restaurants, bars, and other business that operate in New York with lots of employees.[1][2] Here is the problem in a nutshell — One of the main reasons you […]

Well, This Stinks! In twenty-five years as a lawyer, I can confidently say that the law usually makes sense.  Well, not here! In our previous article, we explained why it is important to assign shares in corporations and membership interests in LLCs to family trusts so as to realize the full estate-planning value of the […]

Most of our clients probably have family trusts. Yet 99% of the 20,000 entities in our system are not owned by trusts, but by the individuals who formed the entities. We want to take this break from our regularly scheduled programming to remind our clients that if you have a trust, you can only realize […]

Our firm obtains hundreds of Employer Identification Numbers (EINs) from the Internal Revenue Service every month when forming companies for our clients. As part of our process, we file articles of incorporation with the secretary of state’s office, then obtain the EIN from the IRS. Even though we are usually able to quickly obtain the […]

We recently wrote an article about What It Takes To Qualify as a Women-Owned Small Business (WOSB). Under the Small Business Act, Women-Owned Small Businesses (“WOSBs”) and Economically-Disadvantaged Women-Owned Small Businesses (“EDWOSBs”) may receive a leg up in trying to obtain federal contracts. To qualify as a WOSB, a concern must be (1) a “small […]

A small business corporation may elect to be treated as an “S corporation” under section 1362 of the Internal Revenue Code in order to receive favorable tax treatment.[1] In general, the corporation can make the election to be treated as an S corporation (1) at any time during the preceding taxable year, or (2) during […]

The Small Business Act authorizes certain procurement mechanisms to ensure that Women-Owned Small Businesses (“WOSBs”) have an equal opportunity to participate in federal contracting.[1] The WOSB Federal Contracting Program is implemented through regulations adopted by the U.S. Small Business Administration (“SBA”).[2] To qualify as a WOSB, a concern must be (1) a “small business,” and […]

UPDATE: Change in California Law Requiring Certain Corporate Officers or Directors, General Partners, and LLC Managing Members to Proactively Waive Their Rights to Workers’ Compensation Workers’ compensation acts provide a statutory mechanism for compensating employees, or their dependents, when the employee is injured or killed on the job, without regard to negligence.[1] Employers secure their […]

The biggest myth about incorporating in the startup community is that if the company has no revenue, there is no obligation to file tax returns or pay franchise taxes.  This is wrong, and this article, we will debunk that myth. In our last article, we noted California corporations must pay a minimum franchise tax of […]

So how much does it really cost to incorporate? In our last article, we examined the primary benefits of forming a business entity, as well as some of the hidden costs associated with achieving those benefits. In this article, we’ll delve into the more obvious costs of forming a new business entity. Those costs fall […]

In Read This Before Incorporating, I expressed my thought that most businesses incorporated online did not need to be incorporated in the first place.  Incorporating makes sense for some entrepreneurs and not for others.  The key is to evaluate the pros and cons for your specific situation. Since most entrepreneurs we speak with think they […]

I’m guessing that at least half of all corporations formed online did not need to be formed in the first place. We form and maintain a lot of business entities at eMinutes. So people are always surprised when, after exploring with them why they want to incorporate (or form a LLC), we advise them to […]

Entrepreneurs who are planning to incorporate at the end of the year are usually focused on being in a position to operate at the beginning of the New Year. California has a unique statutory provision that gives entrepreneurs a head start on their business plans for the coming year by enabling them to file their […]

We have written before about the chief reason for incorporating: liability protection. (Does a Corporation or a LLC Provide Better Liability Protection?) In the words of one New York court, “[o]ne of the primary legitimate purposes of incorporating is to limit or eliminate the personal liability of corporate principals.”[1] We were not surprised, then, when […]

In our first article on resident agents, we noted that some states, such as New York, require a business entity to designate the Secretary of State as its agent upon whom process against the corporation may be served in the state.[1] This may be a somewhat worrisome concept to business owners, as service is deemed […]

All states require that business entities formed or registered to do business in the state maintain a registered agent in the state to accept service of process on behalf of the entity.[1] In this context, “process” refers to the legal documents, usually a summons and complaint, used to commence a lawsuit against the entity.[2] The […]

In our prior article, Why Delaware Is the Best Jurisdiction for Actors and Creatives, we suggested that if you are setting up a new corporation while doing business in one state but knowing that the chances are pretty good that you will soon be pulling up stakes and setting up shop in another state, your […]

Census figures indicate that between 2010 and 2015, about five million people moved to a different state every year.  With that much interstate migration going on, it makes sense to consider carefully what state a corporation should be formed in, especially if the owner knows that a move may be likely in the near future. […]

In our prior article, How to Use a Delaware LLC to Safeguard Identity, we suggested a strategy for using a Delaware limited liability company to safeguard the identity of “[c]elebrities and others investing in real estate and other business ventures.” We assumed, of course, that the strategy would be used only for legitimate reasons, such […]

Celebrities and others investing in real estate and other business ventures may wish to preserve their identity from public disclosure for various reasons. In many cases, the best option available to do so is forming a pair of LLCs under Delaware law. Unlike California and many other states, Delaware does not require that any information […]

This article continues our series on loans to shareholders. In the preceding articles, Loans to Shareholders Must Be Made on Market Terms and Loans to Shareholders: The Importance of Payment Terms, we concentrated on particular aspects of loans from a corporation to a shareholder that are examined in determining whether such a loan is bona […]

In our prior article, Loans To Shareholders Must Be Made on Market Terms, we focused primarily on the importance of charging interest on shareholder loans at the “applicable Federal rate” (AFR).  The article generated so many interesting questions that we have decided to write a few more articles on the topic.  In this article, we […]

In small, closely held corporations owned by one or just a few shareholders, the corporation will often make loans to a shareholder. Such loans are perfectly legal, but they must be made on market terms. That is, a corporation cannot lend money to a shareholder with no interest whatsoever and no regular payment obligation and […]

The Internal Revenue Code requires that a corporation, within 30 days after the adoption of a “resolution or plan for the dissolution of the corporation or for the liquidation of the whole or any part of its capital stock, make a return setting forth the terms of such resolution or plan and such other information […]

As a rule, we do not form general partnerships and will simply decline the work if asked to do so. Why such a strong stance? Because it makes no sense to form a business entity exposing partners to individual liability for all of the partnership’s debts and obligations, not to mention the wrongful acts of […]

Piercing the corporate veil is the single most litigated issue in all of corporate law.[1] But despite all the litigation, veil-piercing is still “poorly understood.”[2] One scholar has gone so far as to say that “[f]rom its inception veil-piercing has been a scourge on corporate law. Exactly when the veil of limited liability can and […]

When we are asked to review a California limited liability company’s Articles or Operating Agreement, one of the first things we do is look for provisions requiring the holding of regular corporate-style board or shareholders’ meetings and eliminate them. California’s Revised Uniform Limited Liability Company Act provides for the holding of members’ meetings (just like […]

Business entities generally have to indicate what sort of entity they are in their name. For example, the name of a limited liability company organized under California or New York law must contain the words “Limited Liability Company” or the abbreviation “L.L.C.” or “LLC.”[1] Similarly, the name of a corporation organized under New York law […]

When I was a new lawyer nearly 25 years ago, a tardy S-election was a legitimate reason to freak out.  Fortunately, that is no longer the case. The Internal Revenue Code defines an “S corporation” as, “with respect to any taxable year, a small business corporation for which an election under section 1362(a) is in […]

One of the primary purposes of forming a corporation or a limited liability company is to limit shareholders’ or members’ liability for the entity’s debts.[1] But does one form of business entity provide better liability protection than the other? The differences, if any, are so small that they should not be a principal consideration in […]

New York is one of a very small handful of states that require a newly formed limited liability company to publish notice of its formation in local newspapers.[1] In particular, a limited liability company must, within 120 days after filing its articles of organization with the New York Department of State, cause to be published […]

Our law firm has taken the unusual step of requiring our clients to have CPAs. We even turn away clients who aren’t working with accountants. Most would agree that forming a business entity involves tax and legal issues. After nearly twenty-five years of forming companies, it just doesn’t seem possible to me to structure a […]

Entrepreneurs who are planning to incorporate at the end of the year are usually focused on being in a position to operate at the beginning of the New Year.  Rather than form the new business on the first business day of the year (January 4, 2016), California entrepreneurs can file their Articles before year end, […]

After an extensive look at when a company is obligated to qualify to do business under New York and California law, we developed a three-part analysis to determine whether a company must qualify. First, is someone requesting evidence that the company is qualified to do business in the state? As a practical matter, if a […]

How many corporate seals are sitting at the bottom of drawers or inside dusty corporate minute books? I extensively looked into corporate seals and want to give you permission never to order a corporate seal again! In fact, you can probably toss all of those seals at the bottom of your drawer. Corporate seals are […]

All states, including California, Delaware, and New York, require that a corporation keep correct and complete copies of its books and records, including minutes of shareholders’ and directors’ meetings.[1] The states also all provide for the inspection of such books and records upon demand by a shareholder.[2] Corporations have traditionally kept paper copies of required […]

There are many legitimate reasons why an investor may prefer that his or her name not be publicly disclosed.  When the goal is to preserve anonymity, we have long recommended Delaware as the best choice of jurisdiction.  See, Delaware: Homerun for Celebrities and Investors. But it is equally important to be cognizant of what information […]

Did you know that there are dozens of activities that cannot be provided as a LLC in California? Most states permit professionals to render services through a professional limited liability company. But that’s not the case in California. In California, professional services may be rendered by a professional corporation, but not by a LLC. The […]

Whenever a S-corporation issues shares to a resident alien, the other shareholders of the corporation are placing a bet on the foreigner’s desire (and ability) to remain in the US. Although the tax code permits certain foreigners to be shareholders of S-corporations, we do not casually suggest it, because a foreigner who does not stay […]

The party is over! Effective July 1, 2015, Nevada’s business license fee for corporations increased 150%, effectively putting the nail in the coffin for Nevada as a jurisdiction to consider when forming a business. Yes, you read that correctly.  The state Business License Fees will increase from $200 to $500 for corporations, and the annual […]

There’s so much written on the web about choosing between an LLC and a corporation.  Far too often, entrepreneurs are unaware that LLCs and corporations are very different. Although virtually the same from a liability protection standpoint, LLCs and corporations are extremely different from a tax standpoint. We’ve attempted to make the choice easier with […]

What does “incorporating” mean?  In recent years, jumping online to file Articles has been referred to all over the web as “incorporating”.  You can find hundreds of websites that sell “basic” incorporation packages that provide Articles, and you can frequently upgrade to a “premium” package that might include a fake-leather corporate book and seal where […]

Seems like a shocking thing for a lawyer who forms corporations to say – but after talking to hundreds of entrepreneurs, it is clear to me that too many entrepreneurs are wasting money when they incorporate. My law firm is forming 500 free corporations for first-time entrepreneurs, so I have spoken with hundreds of passionate […]

Since the recession began, the cost of corporate compliance has increased, while state governments have limited services in this area.  All states require corporations and LLCs to regularly update key information (e.g., principal place of business, names and addresses of officers and directors, etc.) with the Secretary of State.  In California, for example, each year […]

Without more, even the most well drafted incorporation documents won’t do anything to protect an entrepreneur from liability.  After all, documents are just paper.  What protects an entrepreneur from liability comes after the formation of the corporation. Sure, it goes without saying that the corporate documents have to be buttoned up, but liability protection can […]

There’s no reason to incorporate other than liability protection. That’s a bold statement, but it’s pretty much the case.  For some high earners, there might be some tax benefits, but incorporating is mostly about limiting your downside.  Because most new businesses fail, it’s a good idea to cover your downside risk.  The problem is that […]

If there was ever a case that demonstrates the importance of corporate minutes in an alter ego case, it’s  Mix v. Tumanjan Development Corp., No. B157394, 2003 WL 21810813 (Cal. Ct. App. 2d Dist. Aug. 7, 2003) (unpublished).  This is an unpublished decision (meaning it can’t be relied upon as law), but it shows just […]

Nearly 50 years ago, the California Supreme Court listed the factors that are evaluated when a judge is asked to hold a shareholder personally liable for the debts of a corporation.  This is commonly referred to as “piercing the corporate veil”.  Click here to see the list.  Some of the factors include whether the corporation […]

Starting a business is a fantastic New Year’s resolution, but first-time entrepreneurs should keep in mind that it is not necessary to incorporate to start a business.   “Choice of entity” refers to whether a client should form a corporation, LLC, or limited partnership.  For lawyers and entrepreneurs alike, it’s usually a foregone conclusion that starting […]