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Sole Proprietors Are Rolling the Dice

In today's ultra-competitive and dangerously litigious business climate, you can't afford to throw the dice with your most valuable asset. Your exposure is far greater than you may think, both personally and professionally. As a sole proprietor, regardless of the size of your business, you personally have unlimited liability if your company is sued. You could actually lose all of your personal assets.

Sharon McNair is a CPA and a member of the Nevada State Board of Accountancy. She tells us that her fellow CPAs often advise their clients that they don't have to incorporate until they reach a certain profit level - say, $30,000. She thinks this is madness - and we couldn't agree more. Think about it - just being involved in a lawsuit is so very, very costly, regardless of whether you win or lose the case. It's pretty twisted logic to think that a small business can absorb that financial blow better than a larger one.

Worse, most people are naively unaware of what can happen to them, both professionally and personally, if their business is hit with even a frivolous lawsuit. Here are just a few things you would struggle with or be completely unable to do if your business is sued:

•  You may not be able to get a loan for a new home, refinance or take a second mortgage on your current home. (We'll explain why in a moment.) At best, you'd have to pay a much higher interest rate, because you're now considered a higher risk to the lending institution - through no fault of your own.

•  You may not be able to finance a new car.

•  You may not be able to lease office space.

Why do lawsuits cause such a problem with loans? If you haven't recently applied for a home loan, a second, or financing for a car, you may not be aware of how times have changed. Five years ago financial forms asked, "Do you have any judgments against you?" That meant, "Have you been sued, lost the suit, and had a judgment levied against you?"

However, financial institutions have gotten smarter. They've tightened up the system that they use to rate levels of risk for loan applicants. Today's loan applications ask a very different question: "Are you currently involved in a lawsuit?" That means that if anyone tries to sue you for any reason, frivolous or not, at the very least you'll be rated as a much higher risk. (Remember, that's before the suit is even decided.) And that translates to a lot of money out of your pocket! End result: You may be financially paralyzed!

Are you willing to forego that dream home, that new car, because someone tripped on a pavement crack in your business's parking lot? And just imagine what being unable to lease office space could do to your business.

Creating a legal entity separates the business from you personally, so that any legal action can only affect that entity - and not you personally!

This is by far the biggest reason to incorporate or form an LLC. It makes no sense to have a sole proprietorship unless you have no assets or future assets coming. In which case you shouldn't - and wouldn't - be in business at all.

Sole Proprietors Are Risking Their Personal Credit And Capability For Future Financing!

You may already be thinking, "I don't plan to have a sole proprietorship. I'm convinced that I need to form an entity." But when will you take action? If you wait 30 days or longer, do you realize the negative impact that may have on your business? Although it's not impossible for a lawsuit to pop up in that short period, a MUCH bigger (and disturbingly common) mistake lurks at this important business start-up phase.

Using your personal credit cards to finance the start-up of your business is the most widespread mistake made. Added to the folly of operating as a sole proprietorship with a "Let's see how we do first before we incorporate" mentality, it's a recipe for disaster. Here's why:

Financing your business with your personal credit (credit cards, home equity line of credit, etc.) negatively affects your "revolving debt ratio." That ratio is a major factor in your new corporation or LLC's ability to obtain a business credit card at the start... and later, a business line of credit.

Why is this so important? The #1 reason business owners fail, especially during the first six months, is lack of cash flow. That's when the folly of overestimating revenue and underestimating expenses rears its ugly head. And for most small business owners, that behavior is as predictable as the sun.

NCP is one of the few, if not the only company that literally "Cracked the Bank's Code" on business lines of credit for you. We spent more than four months going back and forth with a major bank to figure out exactly how they make their decisions as to who does not get those valuable lines of credit. Who does and how much they get.

Factors such as the "liquid credit score," the risk category of your business, gross revenues, your personal credit score, derogatories, and your revolving debt are all taken into consideration.

Here's the bottom line: If you're starting your business by nearly or completely maxing out your credit cards, the bank will ignore you. Even with a 700 personal credit score, if your revolving debt is close to 90% maxed out, that sends the bank a very clear message that you cannot manage your personal debt. Why give you money to start a business? Basically, you're on your own financially.

Don't be misled by TV or Internet ads about "corporate credit" either. Usually, they refer to "trade lines of credit," which doesn't give you actual cash for you to use in your business as you choose. Now, if you're building homes or have more than 30 employees, developing trade credit can be important --- but it's still not cash. You can't use trade credit to make payroll spend on pay-for-click advertising or any of the many other strategies you need to start quickly and gain that all-important competitive edge.

Want a simple solution?

•  STOP using YOUR PERSONAL CREDIT CARDS ASAP!

•  Incorporate or form an LLC

•  Open a BUSINESS CREDIT CARD and use that ONLY for your business expenses. Yes, it is personally guaranteed, but it will NOT negatively impact your personal revolving debt ratio.

That's key advice as your business gets started. Remember, when your corporation or LLC applies for a business line of credit, half of the bank's formula in determining eligibility is your personal credit score --- and most importantly, the revolving debt ratio.

Sole Proprietorships Are 300% More Likely To Be
Audited By The IRS Even By Las Vegas Standards,
Those Are Incredible Odds!

Fact: Sole proprietorships are currently being targeted by the IRS. Why? In a self-audit last year, the IRS discovered a $300 billion tax gap --- meaning that more than $300 billion-worth of taxes go unpaid annually. They concluded that the biggest offenders were not large corporations, but rather small business owners who owed somewhere around 70% of that $300 billion. Of that group, 1/3 were sole proprietorships. You can bet the IRS isn't going to ignore that low-hanging fruit! In fact, you are 300% more likely to be audited if you file a Schedule C.

Is Your Business a Hobby
or a Business?

Most people enjoy a hobby --- golf, tennis, cooking --- and while they'll spend money on those activities, they're not a business. Yet when most people join a business opportunity or start a business, though they don't consider it a hobby, that's often actually what they create because they don't know the rules of the game.

But they have a problem: The IRS is getting much tougher on this subject . The #1 reason the IRS goes after business owners is the failure to use proper analytical records. You'd be well advised to use software like QuickBooks® to determine how your business is really operating --- to update your gross revenue, cost of goods sold, and income.

The biggest mistake we see new business owners make is using their online bank balance as their only business financial barometer. First, that's the wrong way to make financial decisions. Second, it sends the IRS a very clear message: you are NOT serious about your business. This single mistake may cause the IRS to consider your business as a hobby. If they do, you cannot write off your hobby's losses against your earned income --- and that kills one of the biggest reasons to start a business in the first place.

67% Of All U.S. Businesses Operate As
Sole Proprietorships.

If Your Clients Are Business Owners, How Do You Protect Yourself?

If everything we've told you is true (and it is), how do you keep your own business safe? To understand the mindset, consider these three simple, yet costly myths:

•  Myth #1: Sole proprietorships are simple --- the easiest business structure to operate. As you know by now, the worst choice is to operate as a sole proprietorship. Unfortunately, simplicity and asset protection are "inversely related," meaning the more protection you have, the more complex your situation may become. I know that does not resonate with many of you. But your goal is to accumulate profit and assets, and the more assets you accumulate, the more you must protect them.

The good news is that you need not go it alone. The key is to strategize with a knowledgeable, experienced advisor to come up with your optimal protection plan. After all, you need to stay focused on adding value and profit to your new venture, not to become an expert on business start-up methods. You should only have to do that once --- but do it right.

•  Myth #2: Most start-up business owners cover only one component of the big picture by getting tax advice from their professionals. But there's more. Could you benefit by having a separate legal entity to help save on taxes? Which entity is best for your venture? As you know now, there are many elements to consider.

•  Myth #3: I'm a good person, and I have insurance. Why would anyone sue me? That's admirable, but that's not how the game is played. Desperate people don't care if you're a "good person." If you have money --- or the perception of money --- you're a potential target!

Don't bury your head in the sand. Now that you're aware of the pitfalls, take action yourself --- and arm your clients as well --- with the tools and information to be successful. After all, it's in YOUR best interest to make sure your clients prosper! How do you make that happen? Call NCP and ask for more information on how we can help your clients and your business!

We touched briefly on the question of insurance just now. Let's go a little deeper.

Insurance Is Not A Fool-Proof Safety Net 

Even though many professionals tell you that you're protected by insurance, you can still spend a lot of money defending a lawsuit without ever having a claim against your insurance policy.

But what if a claim is made? Insurance may provide some level of protection - but worst case, that protection may be only as good as the legal representation you can afford. (I can't tell you how many clients have found that their insurance companies weren't nearly as friendly when they filed a claim as they were when they first signed up!)

True, you can get Errors and Omissions insurance (or "E&O"), business liability, and even officers' and directors' insurance --- and again, a good policy should provide some protection. But NONE of those will help you protect the corporate veil (a hugely important benefit that we'll talk about more later.) In fact, there is NO insurance policy in existence that can do that.

If you have a smaller insurance claim of, say, $10,000, your insurance company will usually pay it. However, if you have a claim for $900,000, put the coffee on, because you can expect a visit from your insurance company's attorneys. Why? To find a loophole in your policy so they don't have to cover you. And of course, even if they do cover you, your rates will skyrocket - if your policy isn't cancelled!

 

Don't Expect Sympathy from the Courts, Either

Are you a landlord now or do you have plans to own real estate in the future? If you're ever sued, remember that juries are made up mostly of tenants... jealous tenants who don't own a house - and yet you have several. This is their chance to get even with every landlord who ever hit them with a late-rent charge or made them get rid of that pet. It's pay-back time! Is it fair? No - but it's human nature.

And consider this: Most judges earn less than you do. How sympathetic could they possibly be? You might as well just hand over your checkbook and the title to one of your houses - unless you know NCP's asset protection strategies.

The bottom line? Win or lose, even with insurance, you could become financially paralyzed by being a sole proprietor.

Does it make sense to leave yourself exposed? Of course not, especially when the solution is not complicated, sophisticated, or reserved for the AT&T's of the world. The solution is to incorporate! Creating a legal entity separates you from your business so that any legal action will not affect you personally.

Here's an added benefit of incorporation: As any good marketer will tell you, perception is everything in the marketplace. That "LLC" or "Inc." after your name helps people perceive you as larger than you actually may be. Plus, it adds to your credibility - as well it should. It shows that you're aware of the pitfalls lurking out there, you've done your homework, and you've taken the appropriate steps to protect yourself and your company. You'll be around next year, and the year after that. And that message to the marketplace translates to a very direct effect on your bottom line.

Be Sure To Play By the Rules

It's essential to do things properly when you incorporate. Remember, when your company incorporated, you created a separate legal entity from you personally. It's imperative that your corporation is treated as such. If the corporation is sued and there aren't enough assets or insurance, the plaintiff may decide to go through the corporation and after you personally. This is called "piercing the corporate veil," and the consequences to you can be devastating. (More on that later.) You are essentially a sole proprietorship again, financially paralyzed, with a lawsuit against you personally!

How do you keep this from happening? Your new corporate entity MUST:

•  Follow corporate formalities, keeping recorded minutes and resolutions;

•  Have proper capitalization, which is the amount of money you put into the corporation to get it started;

•  MUST NOT co-mingle funds with your personal account. Under no circumstances can you use corporate money to pay for your personal expenses.

Let's take a closer look at how these three requirements can be breached or compromised:

•  Lack of corporate formalities. Here's an example: When an officer of the corporation goes on a business trip, the corporation must have a meeting to authorize that trip. This is hard for some to understand, especially if you're a one-person corporation and you wear all the hats. Still, you must show in your corporate meeting minutes that the trip was approved, because the corporation is NOT YOU. It must be treated as a separate legal entity.

Some people will tell you that an LLC doesn't have to perform the same formalities as an S- or C-Corporation. (Actually, the main reason that CPAs sometimes recommend an LLC is because of lack of formalities.) While this is somewhat true, it is changing.

We've discovered recent court cases involving piercing the LLC veil where the judge looked at corporate cases for guidance, particularly with regard to formalities. Accordingly, use of the term "piercing the corporate veil" has evolved to "piercing the entity veil" or "piercing the LLC veil."

NCP maintains corporate formalities for LLCs as well as for corporations. Our LLC record books have more than 50 pages of resolutions to protect our LLC clients. (We're one of the few companies in the U.S. to do so for our LLC clients.)

•  Lack of proper capitalization: When you form a corporation, it has to be capitalized. That usually means money is put into a corporate checking account, and stock for the corporation is issued to whoever capitalized it (usually an individual, but it could be another entity.) There are certain guidelines in each state that ask, "Did you capitalize the corporation with enough money/assets, or was it too thinly capitalized?"

But what exactly is "too thinly capitalized?"

Lately an unfortunate trend has been appearing in the courts. They've adopted a sort of "20/20 hindsight" in some situations, and companies in high-liability sectors like manufacturing are especially at risk.

For example, let's say you're a widget maker with five employees and you're capitalized at $50,000 and have a $1 million insurance policy - which is appropriate, because widgets are cheap and you don't sell many. Then one day, Joe Employee cuts off a hand with the box cutter and saddles you with a $3 million lawsuit. The court says, "Mr. Business Owner, when you formed this company you should have known that Joe would slice off a hand someday, and you should have known that your insurance would cover only $1 million of the $3 million he'd want. Since you only have $50,000 in capitalization, we're going to consider your company too thinly capitalized. Therefore, we're going allow for piercing your corporate veil to recover the rest."

Crazy? Of course. But true.

You can capitalize a corporation or LLC with cash, assets, and, in most states, services. However, services can create a tax problem. For example, say your partner owns 50% of the corporation and capitalizes it with $25,000. You own the other half, and you capitalize it with services (called "sweat equity.") The IRS says you received an asset without paying anything for it; therefore they treat that $25,000-worth of services as personal income to you. That means you have to claim $25,000 in personal income. But you never earned the money. What you did get was stock in a company, and now you have to pay taxes on it!

One solution might be for your partner to loan $24,000 and then have both partners capitalize the entity with $1,000 each.

Just remember, the corporation has to pay back the $24,000 as a loan, whereas in the first case it was a capital investment which does not have to be paid back. This is a potential problem with partners when it is not clear whether the money is capitalization or a loan.

•  Co-mingling of funds. As a sole proprietor, you no doubt have a company bank account. You can use that money for your business or personal expenses. At the end of the year your CPA will help you determine which part of that money was deductible for business expenses, and which portion was for personal expenses. Often your CPA will find that you spent a lot of money on personal items that are not deductible business expenses. Still, the only consequence to you is that your net profit is higher than you thought, so you owe more in taxes than you expected.

It's very different in a corporation. There must be a separate checking account used for business purposes only. Using that money for personal reasons is called "co-mingling of funds," and the consequences are dire. A judge may actually set aside the corporate veil because you ignored the fact that the corporation is a separate legal entity from yourself - leaving you totally exposed. 

Summary: Incorporating your company helps separate your personal identity from that of your business. Sole proprietors and partners are subject to unlimited personal liability for business debt or lawsuits against their company. Creditors of the sole proprietorship or partnership can bring suit against the owners of the business and seize the owners' homes, cars, savings, or other personal assets. Once incorporated, the shareholders of a corporation have only the money they put into the company to lose, and usually no more.


Additional Benefits of Incorporating  

•  Marketing and Joint Venture Advantage

Which sounds better: "It's the CEO of ABC, Inc on Line 1 for you, Bob," or "It's the owner/operator (meaning a sole proprietor) on line 1 for you, Bob"? As a new business owner attempting to get through a gatekeeper, every minor advantage helps! So many miss this door-opening opportunity, even though it could spell the difference between prospering and being out of the game in the first 90 days.

We have our own policy at NCP regarding Joint Ventures(JV). If a sole proprietorship calls and wants to do a JV, that means one of three things:

•  They have no profits in their business;

•  They don't believe they will succeed, so they didn't spend the money to incorporate;

•  They have a "Let's try it out first to see if it works, then incorporate later" mentality.

Our standard answer is, "Thanks for calling, but we're unable to work with you right now." Of course, they never hear the "real reason" they were rejected. Nor will you, because now you know not to make this mistake in the first place.

•  Tax Advantages - Deductible Employee Benefits

Incorporating usually provides tax-deductible benefits for you and your employees.

Even if you are the only shareholder and employee of your business, benefits such as health insurance, life insurance, travel and entertainment expenses may now be deductible. Best of all, corporations usually provide an increased tax shelter for qualified pensions plans or retirement plans (e.g. 401K's).

•  Easier Access to Capital Funding

It's easy to raise capital for a corporation through the sale of stock. Investors are much harder to attract to sole proprietorships and partnerships because of personal liability. Investors are more likely to purchase shares in a corporation, where there is a separation between personal and business assets. (Some banks, as well, prefer to lend money to corporations.) This is not as common at the small business level as it sounds, because the process can be complicated and require the proper attorneys to make sure you are not violating any security laws. Unfortunately, many small businesses seek investors and never consult with a securities attorney.

•  An Enduring Structure

A corporation is the most enduring legal business structure. Corporations may continue on regardless of what happens to its individual directors, officers, managers or shareholders.

If a sole proprietor or partner dies, the business may automatically end, or it may become involved in various legal entanglements. Corporations can have unlimited life, extending beyond the illness or death of the owners.

•  Easier Transfer of Ownership

Ownership of a corporation may be transferred through the sale of stock without substantially disrupting operations or creating the need for complex legal documentation.

•  Anonymity

Corporations can offer anonymity to its owners. For example, if you want to open an independent small business and don't want your involvement to be public knowledge, your best choice may be to incorporate. But if you open as a sole proprietorship, it's hard to hide the fact that you're the owner. As a partnership, you'll probably be required to register your name and the names of your partners with the county officials and/or state in which...

•  Centralized Management

With a corporation's centralized management, all decisions are made by the board of directors. Shareholders cannot unilaterally make binding agreements on behalf of the business simply because of their investment. With partnerships, each individual general partner may make binding agreements that may result in serious financial difficulty to you or the partnership as a whole.

 

Do I Need An Attorney To Incorporate?

An attorney is not a legal requirement to incorporate. You could prepare and file the articles of incorporation yourself. But, you must fully understand all the requirements of your intended state of formation. That's what NCP is here for. We make sure you know everything you need to know and give you the tools to make sure you've done everything you need to do. NCP does not require a retainer before you get started. You will receive all the fees up front so you know exactly what you will be charged! Costs are not out of control with NCP!

In fact, when people hire an attorney to incorporate, the attorney often actually outsources the work to a company like NCP (and then tacks on a $1,000 fee for his trouble!) Working directly with NCP is like buying wholesale instead of retail. This will save you money up front.

You can use NCP's service to incorporate and not only save money on attorney fees, but you'll rest assured that all forms are filed properly. We recognize that there are areas where an attorney should be retained, especially when it comes to shareholder and buy/sell agreements, raising money, contracts, or to have your documents reviewed. However, NCP will conscientiously inform you any time an attorney should be consulted. If you need a referral, NCP is happy to provide one for you!

 


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