16th Nov 2020
When it comes to choosing a legal entity for their business, almost all small business owners choose either a limited liability company or a corporation(Inc). Learn the differences and decide which option works best for you.
When you incorporate a business or evolve into a company from either a sole proprietorship (if you are the sole owner) or general partnership (if you have no owners), it is formally recognized by its state of incorporation. In other words, it becomes a legal business entity of its own — separate from the individuals who founded it and the shareholders who will own it throughout its existence.
But which one should you choose? Understanding the differences between an LLC and a corporation can be overwhelming, especially if you’re just getting started. Say you own a flower shop. You know you want to call your company My Flowers. But will it be My Flowers LLC or My Flowers Inc? How do you decide which entity type is the right one for your business? You begin by understanding the differences between an LLC and a corporation.
To make the right decision for your business it is important to understand how LLCs compare to corporations when it comes to taxation, liability protection, management structure, ownership, and compliance requirements. As you will see, there are similarities and differences between corporations and LLCs. And the business structure that’s right for you will depend on many factors.
In the contest of LLC vs. Inc, the winner is not always obvious. Let’s start with a quick definition of what it means to form a corporation and an LLC.
1. Incorporation vs. LLC – Separate Entity Status
Corporations: When you incorporate a business, you evolve from a sole proprietorship (if you are the only owner) or general partnership (if you have co-owners) into a company that’s formally recognized by its state of incorporation. In other words, it becomes a legal business entity of its own—separate from the individuals who founded it and the shareholders who will own it for its existence.
LLCs: Similarly, when you form an LLC, you are forming a company with its legal existence—separate from its founders and members (as the owners of LLCs are called).
It’s important to remember that whether you incorporate or form an LLC—it is the corporation or LLC that owns the business. You own the corporation or LLC. So which wins—corporation or LLC? When it’s important to have a separate legal entity, both entity types come out even in this instance.
2. LLC vs. Inc – Formation
There are similarities and differences in how you form a corporation vs. how you form a limited liability company. Both are formed by filing a document with certain information with the Secretary of State (or whatever the business entity filing office is called) in the state that you choose for your home or domestic state.
That document is often called Articles of Incorporation for a corporation or Articles of Organization for an LLC. You then have to draft bylaws for a corporation and an operating agreement for an LLC.
There are some differences between these documents to be aware of in making the LLC vs. Inc. decision.
The Articles of Incorporation generally contain more information and are used to opt-out of or change certain statutory requirements that the corporation will be subject to otherwise. Also, certain governing provisions have to be included in the articles to be effective.
The Articles of Organization for an LLC contain fewer required pieces of information and almost all the provisions for how it will be managed, and the rights, duties, and liabilities of members and managers are contained in the operating agreement.
The Articles of Incorporation and Articles of Organization are public documents. The operating agreement is not.
So, if LLC vs. Inc. were a boxing match and you want less information about the business’ internal affairs available to the public, then LLC would win this round.
3. LLC vs. Corporation - Limited Liability Protection for Owners
One of the main reasons to form a corporation or LLC for a small business is to avoid personal liability for the business’ debts. As we mentioned earlier, corporations and LLCs have their own legal existence. It’s the corporation or LLC that owns the business, its assets, debts, and liabilities. The shareholders or members own the corporation or LLC and their liability is limited to their investment.
Limited shareholder and member liability are well-established and respected rules. But that doesn’t mean they can never be liable for anything. They’re still liable for their own wrongdoing—such as if they breach the operating agreement. And owners can be liable for certain activities if there’s a statute that imposes liability on them.
In fact, members and shareholders can still be held liable for their company’s debts under a legal concept known as “piercing the corporate veil”. Veil piercing is a remedy in which courts will disregard the corporation or LLC’s separate existence. With the entity no longer in the picture, the shareholder or member becomes liable for the business’ debts.
In deciding whether to pierce, the courts apply various tests. One of the most frequently used tests looks for two things: 1) “a unity of interest” between the corporation or LLC and its owners such that their separate identities cease to exist, and 2) that the corporation or LLC was used to perpetrate a fraud or achieve an inequitable result.
What the unity of interest test basically asks is whether the shareholders or members respected the fact that the corporation or LLC owns the business. There are a number of factors the courts will look at, including whether the corporation or LLC was undercapitalized; if the shareholders or members used the business’ asset for personal purposes, and whether there was a failure to follow compliance requirements. So, basically, in the LLC vs. Inc. boxing match, this round can be judged even.
4. LLC vs. Inc. for Taxation
A key difference between an LLC and a corporation is the way they're treated at tax time. And in the match of LLC vs Inc, taxation is almost never a draw. It will favor one or the other.
An LLC is a pass-through business entity for federal income tax purposes. That means it does not have to pay federal income tax. Instead, its profits and losses go straight through to the owners. Business income equals personal income, so the owner pays the tax on his or her personal return, and it's taxed at the individual rate. Since only the members pay tax, there is a single level of taxation.
While a single level of taxation is a good thing, it doesn’t guarantee that being taxed as an LLC is better for you. In some circumstances, LLC owners can earn a substantially increased tax bill through the addition of the self-employment tax, currently at 15.3 percent. And it can also depend upon whether the corporate or personal income tax rate is higher and what exemptions and deductions the owners are entitled to.
Pass-through taxation is the default rule. If you do nothing, your LLC will be taxed as a partnership under Subchapter K of the Internal Revenue Code. This is the case when you have more than one member, or your LLC will be disregarded completely for income tax purposes if you are the only member.
But if it is to your LLC’s advantage to be taxed as a corporation, you have that option. You can file Form 8832 “Entity Classification Election” with the Treasury Department, and your LLC will be taxed as a corporation under Subchapter C. Then, if you so desire, and if your LLC qualifies, you also have the option to make a further filing to be taxed under Subchapter S. We’ll take a further look at S corporations vs. C corporations in the next section.
There are two kinds of corporations for income tax purposes. There are C corporations—so named because they are taxed under Subchapter C of the Internal Revenue Code (IRC). And there are S corporations—so named because they are taxed under Subchapter S of the IRC. In a nutshell, C corporations are subject to double taxation. S corporations are subject to single taxation.
When you incorporate, your corporation, by default, will be taxed under Subchapter C. Your corporation is a separate taxable entity with the business’ profits and losses taxable to the corporation, not to the owners. As a result, corporations are taxed at the corporate rate. Then, if the corporation distributes its profits to the shareholders, say in the form of a dividend, that is income to the shareholders which they have to report on their personal income tax return. It's a double tax, and it can seriously cut into the real dollars earned in the end.
However, if your corporation qualifies, you can choose to have it taxed as an S corporation. An S corporation is a pass-through tax entity. Although S corporations and LLCs have that in common Subchapter S has several restrictions that LLCs taxed as a partnership or disregarded entity are not subject to.
To be eligible to make an S corporation election, and to continue to be an S corporation, the corporation must meet strict requirements on the number and type of shareholders and types of shares. These rules are imposed by federal tax law, and not state corporation law. Briefly stated, these rules include the following:
· Only individuals, U.S. citizens or residents, certain estates and trusts, certain tax-exempt organizations can be shareholders
· There cannot be more than 100 shareholders (although some family members can be counted as a single shareholder)
· There can only be one class of stock (although differences in voting rights are permitted)
5. LLC vs. Inc – Post-Formation Compliance
Both LLCs and corporations have certain obligations they must meet to stay in good standing in their formation states. These include filing an annual report, paying franchise taxes, and appointing and continually maintaining a registered agent and office.
An annual report is a report with information about the company, including its name, principal office address, name and address of its registered agent, and names and addresses of its managing officials. In some states, this is a biennial requirement instead of an annual requirement.
A franchise tax is a state’s fee for allowing a company to exist and do business in the form of a corporation or an LLC and all the advantages that brings, like a limited liability.
Failing to file an annual report, or pay franchise taxes brings penalties, including the loss of good standing status, and can eventually lead to administrative dissolution. This is all true of both corporations and LLCs.
6. LLC vs. Inc – Registered Agent Compliance
Whether you choose a corporation or an LLC you will have to appoint and continually maintain a registered agent in your formation state, as well as in every other state where your company is qualified to do business.
A registered agent is an individual or a company appointed to receive and forward service of process and certain official communications from the state such as its annual report form. Service of process is the delivery of court documents, in particular, the summons that tells your company it’s being sued and by whom, the reason why and for how much.
Since both corporations and LLCs have to do this, neither gains the upper hand. Keep in mind that this is a critical decision and choosing the wrong registered agent can lead to consequences for your company like default judgments or a loss of good standing. That’s why we recommend appointing a professional registered agent rather than choosing an employee, attorney, or one of the owners.
7. LLC vs. Inc. for Management
Corporations and LLCs have different management structures. Management is governed by both the statute and the governing documents: Articles of Incorporation and bylaws for a corporation or Articles of Organization and operating agreement for an LLC.
Corporations' laws have more management requirements than LLC laws. Corporations have to hold annual shareholder meetings, provide notice, hold directors’ meetings, and so on. A director has to be a natural person and cannot vote by proxy.
Many LLC statutes just leave it up to the members to provide in their operating agreement for how they will be managed. For example, meetings are not required, managers do not have to be natural persons and can vote by proxy. This affords LLC owners a degree of flexibility in management that they won’t have with corporations which is a point generally considered to favor the LLC over the Inc.
In a corporation, by statute, a board of directors manages the business and affairs (and oversees the major business decisions). The board appoints officers who are responsible for the day-to-day running of the business. Shareholder management functions are very limited and include such things as electing directors and voting on certain major transactions like mergers.
In contrast, an LLC has a choice of two management structures. It can be member-managed—meaning all members participate in the decision-making. This is a similar management structure to a partnership. Or it can be manager-managed—in which members, like shareholders, are investors with limited management functions. The managers manage the business and affairs and their role is akin to that of corporate directors.
If all the owners want to participate in running the business, LLC beats Inc. But if the members want to be passive investors and have the business run by managers with more expertise than they have, and want the extra protection provided by the corporation statutes, then Inc. beats LLC.
8. LLC vs. Inc. for Ownership
In terms of ownership, shareholders and members have both financial rights and management rights. In addition to the management rights earlier, other management rights include the right to inspect books and records and bring a derivative suit on behalf of the corporation or LLC. The financial rights include the right to share in the profits through dividends and distributions upon the company’s dissolution.
In a corporation, the shareholders’ rights are based on their stock ownership. If the corporation issues a dividend of 10 cents per share, all shareholders receive 10 cents per share. However, in an LLC the members can split up the rights so that certain members can get a bigger dividend than others. That financial flexibility is also generally considered a decision in favor of the LLC over the corporation.
Neither the LLC laws nor the corporation laws have restrictions on the number of owners the business can have or who can be an owner. But Subchapter S of the Internal Revenue Code does. So, if you want to have a corporation or LLC taxed as an S corporation, you will have to deal with the restrictions described in the discussion of income taxes.
9. LLC vs. Inc. for Classes and Transferability of Interests
A corporation’s shares are easily transferable to others (unless the shareholders have an agreement restricting transfer)—making corporations a good choice for businesses that seek outside investment or are considering a public stock offering.
It’s not as easy to transfer LLC membership interests as it is corporate stock. In most LLCs, the consent of the other members is required before someone new becomes a member.
So when it comes to the ability to sell or transfer an ownership interest, it’s the Inc. over the LLC.
Corporations can also issue different types of stock interests. For instance, they can have a class of common stock with voting rights and a class without voting rights. Or, they can issue preferred stock with a right to dividends and distributions that have priority over common stock. LLCs can also offer different classes of membership interests.
However, this is not so if you want to be taxed as an S corporation. The tax law requires S corporations to have one class of stock.
10. LLC vs. Inc. for Recordkeeping
Recordkeeping is a fundamental requirement for both LLCs and corporations. Various records, including the governing documents, shareholder and member lists, and certain tax returns, have to be maintained. And members, managers, shareholders, and directors have a statutory right to inspect those documents. Members and shareholders also can demand to inspect other records if they have a proper purpose and follow certain statutory procedures.