Thank you very much for your interesting question. Your question
immediately caught my eye because I noticed that the previous question
you referred to was one of the first questions I had answered on
Google Answers. However, I will give you the same advice that I gave
the other asker: you would be best-suited incorporating the business
in the current state you live in and from which you will operate the
business, unless there are extremely special circumstances which would
cause you to want to go out of your way to incorporate in another
state-- for instance, you're operating in a high-risk industry in
which it's very likely that you'll get sued and need the protections
that Delaware might offer. First, I'll let you know why Delaware and
Nevada are attractive to many businesses, and then I'll give you my
recommendations on what type of business you should incorporate as and
As I said in that original question, Delaware is attractive to most
large businesses because of a few key reasons:
1. The fees are very low.
2. The government there is friendly to management.
3. Judges in Delaware have the most sophisticated expertise in
corporate law in case a dispute ever arises.
4. There is no income tax charged for a business incorporated there
but not doing business in the state.
5. One person can hold all offices of the corporation.
6. Shareholders, directors and officers do not need to reside in Delaware.
If you incorporate in Delaware, you'd have initial corporate fees in
Delaware and annual registration fees to Delaware. You would probably
also have to file a tax return with Delaware. If you don't live there,
you'll have to have a "registered agent" who does. If you don't have a
friend who lives in Delaware, you'll have to pay a company (there are
many to be found on the Internet) who will act as your registered
agent. This would hold true in Nevada, as well.
Similarly, Nevada has tried to position itself in recent years as an
"incorporation haven." According to the Nevada Secretary of State's
website, Nevada is great for corporations because of the following
" * No Corporate Income Tax
* No Taxes on Corporate Shares
* No Franchise Tax
* No Personal Income Tax
* No I.R.S. Information Sharing Agreement
* Nominal Annual Fees
* Minimal Reporting and Disclosure Requirements
* Stockholders are not Public Record
* Stockholders, directors and officers need not live or hold
meetings in Nevada, or even be U.S. Citizens.
* Directors need not be Stockholders
* Officers and directors of a Nevada corporation can be protected
from personal liability for lawful acts of the corporation.
* Nevada corporations may purchase, hold, sell or transfer shares
of its own stock.
* Nevada corporations may issue stock for capital, services,
personal property, or real estate, including leases and options. The
directors may determine the value of any of these transactions, and
their decision is final."
Here are some additional thoughts on why Nevada is a great place to incorporate:
"The Supreme Court of Nevada has consistently taken a very strong
stand in the protection of corporate privacy, even when a corporation
fails to adhere to basic corporate formalities.
Since the implementation of these privacy statutes in 1991, the number
of new incorporations in Nevada has exploded. Unlike most other
states, Nevada does not require corporate stockowners to disclose
their information. In fact, the information is not kept on file with
Additionally, to ensure privacy, Nevada allows its corporations to use
bearer stock certificates, which make it virtually impossible to prove
the ownership of a Nevada corporation. Accordingly, owners or
investors utilizing bearer shares can have complete control and
ownership while remaining anonymous.
Nevada also does not tax the income of its corporations or its state's
citizens. A Nevada corporation is also not subject to any other hidden
taxes such as franchise taxes, capital stock taxes, or inventory
taxes. Sales tax applies only to products sold within the state."
The same site also speaks of why Delaware is favorable:
"Incorporating in Delaware is generally less expensive than most other
states. The initial charge for incorporating in Delaware can be as low
as $89.00; the annual franchise tax can be as low as $65.00 in many
cases; and the cost of continuing operations is low as well. There is
no Delaware corporate income tax for corporations that are formed in
Delaware so long as they do not transact business in Delaware.
Another benefit of Delaware incorporation is Delaware's extensive and
often easily interpretable law. Delaware has a separate Court of
Chancery (a business court) that does not use juries, but instead
utilizes merit-based (not elected) judges. Because there are no
juries, decisions from the Chancery Court are issued as written
opinions, and as such, Delaware has a large body of written legal
precedent to rely upon.
Delaware law also allows for a version of the Limited Liability
Company called a Serial LLC. Traditionally, an LLC is relatively
simple to form and maintain. It is similar to the formation of a sole
proprietorship or a partnership, but also provides a layer of
protection (the corporate shield) as a limitation of liability. Unlike
regular LLCs, Delaware's ?Serial? LLC allows different lines of
business to be treated separately from each other from a liability
So here is a lowdown:
extensive laws protecting corporations
no corporate tax if you don't do business in Delaware
serial LLC available
no residency requirements
same person can hold all offices
low franchise tax
no corporate tax or income tax (income tax would not be applicable
anyway unless you are a resident of Nevada also)
no franchise tax
advantages if you are a stock-holding corporation (since yours is a
start-up, this is probably not applicable anyway)
can maintain strong corporate privacy
Which state you decide is best depends mainly on your own personal
needs. To a start-up, Nevada may be better because there's no
franchise tax, but Delaware may even that out with its lower initial
However, there is a strong case to be made for not incorporating in
either of these states, but in your home state (where you actually are
and where your state will be conducting its business) for a few
reasons, even though technically an online business can do business in
other states not as a foreign corporation. First of all, your business
WILL have to have a physical address-- where will your bank account be
located and what will the address be on your checks? Where will you
receive mail for the company? The state that you live in could very
well notice that you are operating a business from within your state
and try to charge you foreign corporation fees and taxes, in addition
to corporate taxes for the business. Your state would not want to miss
out on the possible taxes they might get from you operating in their
state. In addition to this, you would have to file a tax return in
Delaware if you incorporate there. This could be too much hassle to
deal with and you might just want to start out in your home state. If,
however, you are thinking that you are Internet only, (as in, you
receive money from Paypal or credit cards or something of that
nature), you have no checks that you will be issed or issuing, no
office and no packages or products shipped from your home state to
other states, you may be safe to assume that you do in fact have no
physical presence in your state besides a bank account. However, you
would be wrong with that assumption.
"At the state level, you will have to follow the tax laws of the state in
which you have NEXUS, which is a presence in that state. The server
location may or may not cause you to have nexus, YOU actually doing work
will cause nexus to take hold and you will, at a minimum, have to file
In addition, your business presence would be in the state you are
actually doing business from, not Delaware or Nevada:
"> 'What legal requirements do I have to fulfill to make it all covered
> in this scenario as I outlined above? If I have a agent in either two
> states, will that considered be the official point of presence for the
> business so that I don't need to apply for other licenses or such in
> any other places to conduct the business?'
No. Where you actually perform the services, have your office, keep
records, bank, etc. THAT is your place of business."
Huge companies deem it worth their time and trouble to incorporate in
Delaware because they have to register in every state anyway to do
business there, and Delaware has such great laws in case these
corporations ever get in legal trouble.
Remember, also, that if you ever get sued, the state your company
resides in is where the lawsuit will take place. You would have to
hire a lawyer in Delaware/Nevada and defend a lawsuit that takes place
there, in addition to paying to have your registered agent notified of
the lawsuit. It could be an advantage to you, however, that Delaware
is so corporation-friendly in the event of a lawsuit.
I would still advise you, from all this, that it probably does no good
and in fact might cost you money, through extra time spent filing
paperwork, to incorporate in Nevada or Delaware. You would still have
to pay income taxes and corporate taxes in your home state. If there
are special circumstances for which you feel these states would meet
your needs, they do offer corporation-friendly incorporation, but
these are mainly for the largest types of businesses that do business
in every state.
LLC, S-corp or C-corp
I recommend that you file your business as a C-corp. Here's why.
An LLC, as you surmise, is indeed reflected on the personal income tax
return of the owners. Since you want to keep things completely
separate, it might not be for you. All three types prevent the owners
from being held liable for debts the corporation might acquire.
An LLC can have foreign owners as members of the LLC. Both S-corps and
C-corps are required to hold meetings every year and keep records of
those meetings; an LLC does not require this. An LLC is also meant for
temporary purposes and is usually required to specify a date upon
which it will cease existence on its initial filing papers (and upon
the death of one of the partners).
LLCs are more desirable than sole proprietorships for those who are
running their businesses alone, because they do not hold the owner
responsible for the personal debts of the business as a sole
An S-corp and C-corp are similar in some ways, with a few very
important tax differences.
"1. An S Corporation is simply a C Corporation (also known as a
standard business corporation) that files IRS form 2553 to elect a
special tax status with the IRS. The articles of incorporation that
are filed with the state are same whether a corporation is a C
Corporation or S Corporation.
2. They both are separate legal entities that are created by a state filing.
Both offer the same limited liability protection, the owners are
typically not personally responsible for the debts and liabilities of
3. Both entities are required to follow the same formalities. They
must hold annual meetings of shareholders and directors each year and
meeting minutes must be kept with the corporate records."
However, an S-corp requires that the corporation's taxes and profits
are reflected in the personal income tax returns of the owners,
whereas a C-corp requires separate filings for the business and for
the owners. However, the C-corp can result in double taxation for
dividends paid from the business to the owners-- the business is taxed
on the profit, and the owners taxed on the dividends as income. Since
you want to keep things separate-- and since the C-corp allows you to
have a foreign partner, the C-corp works better for you in this
In addition, an S-corp cannot have foreign persons as shareholders
(aka, owners). For this reason, a C-corp would meet your needs better
than an S-corp.
A C-corp can have an unlimited number of shareholders while an S-corp
is limited to 100 shareholders, none of them foreign.
To sum up, your only options really are between an LLC and a C-corp,
due to your Scottish partner. An LLC would funnel the funds to your
personal bank account, possibly putting you in a higher tax bracket
than you would want to be in, but saving you the double taxation of a
C-corp. However, the LLC also comes with its own tax pitfalls:
"The owner of an LLC is considered to be self-employed and, as such,
must pay a ?self-employment tax? of 15.3% which goes toward social
security and Medicare. The entire net income of the business is
subject to self-employment tax.
The self-employment tax rate consists of two parts: 12.4% for social
security and 2.9% for Medicare. In 2006, only the first $94,200 of
total net income is subject to the social security portion of the tax.
All of the the total net income is subject to the Medicare portion of
In addition, if you use your dividends from the business to put money
back into the business, you may not be taxed on them as dividends:
"The double tax may not be a problem if: profits are to be 'plowed
back' into the business and not distributed to shareholders."
In fact, the double taxation issue might not even be an issue for you
if you until you want to "cash out" the business-- mete out the
profits that it has acquired.
"The C Corp status gives you a little more flexibility in terms of tax
deductibility of benefits to officers, and the tax rate is lower if you
are building up working capital. The S Corp eliminates double taxation
when you want to cash out, and is supposed to be a little simpler (e.g.,
less expensive) on the paperwork."
Another advantage to filing as a C-corp is that if and when your
partner ever leaves the business and you should want to convert to an
S-corp, the process is simple.
"converting an S-Corp to a C-Corp [or vice-versa] is simply a "check
the box tax election? (or - actually ? ?unchecking the box?) - this
can be done in a day with a single tax form. No lawyers, no
accountants, no money. Therefore, while the LLC has some benefits,
the costs of converting the LLC into a fundable entity is
substantially higher and usually not worth the additional effort."
If you're willing to funnel the business' profits through your own
accounts, the LLC does have some good advantages over a C-corp.
With an LLC, you could split the profits however you would want
between your partner and yourself. With a corporation, you might be
more stifled in how you could distribute the profits. If you live in
Texas, an LLC does not have to pay franchise tax, a 4.5 percent tax on
However, in some states such as California, the LLC is taxed on "net
income," instead of gross profits, such as an S-corp would. (The tax
rate in California is much more lenient with S-corps than C-corps,
Some further thoughts on the taxation of C-corps:
"> '5). Many say that C-corp will end up paying double tax when you start
> wanting to pay out the profit from the corporation. So what's the end
> of the story of a C-corp? What's the common exit strategy for an
> ordinary C-corp?'
There is no general exit strategy that I know of except to pay tax on
the income twice. A C corporation's net income is taxed at the
corporate level. When it is distributed to the stockholders in the
form of dividends, it is taxed to them as ordinary income. If a C
corporation sells appreciated property, the gain is taxed at the
corporate level and again when (and if) it is distributed to the
stockholders in the form of dividends.
If a C corporation distributes appreciated property to its
stockholders, it must recognize and pay tax on the gain as if it had
sold the property at its fair market value (IRC Sec. 311(b)), and the
stockholders recognize the FMV of the property as dividend income to
the extent of the corporation's earnings and profits (IRC Sec. 316).
If there is not enough E&P to support the dividend, the distribution
reduces the stockholder's basis in the corporation's stock (thus
increasing the gain to be recognized on ultimate sale of the stock or
liquidation of the corporation). Any excess of the distribution over
the stockholder's basis is capital gain to the stockholder.
If a C corporation liquidates and distributes all of its assets to its
stockholders, it must recognize gain at the corporate level as if it
had sold the assets at FMV. In that case, the stockholders will
recognize capital gain to the extent that the FMV of the assets
distributed in liquidation exceeds their basis in the corporation's
stock. Since the 1986 repeal of the one-year liquidation rules, it is
just about impossible to get appreciated assets out of a C corporation
without paying tax on the gain twice. That fact accounts for a great
deal of the increase in use of flowthrough entities such as
partnerships, S corporations and LLCs in the last 20 years.
That being said, many personal service businesses are organized as C
corporations because (a) the C corp rules are simpler than the S rules,
(b) they can effectively zero out their net income by paying a salary
to the stockholder/employee, so there is no net income to be taxed at
the corporate level, and (c) they do not own any real estate,
inventory, or other assets that are likely to increase in value."
In essence, by paying yourself and your partner a salary equivalent to
the profits that the company would make, you can show that the company
does not make a profit and then you will only be taxed on these
profits once. With this loophole, it does seem that in fact a C-corp
would be better-suited to your purposes than an LLC would.
It is also easier, within a C corporation, to give large
tax-deductible benefits to owners/employees, such as life and health
In all, I believe you would be best served for your needs by a C-corp.
As far as your tax question goes, yes, business dividends are
currently taxed more favorably than personal income would be.
"Prior to 2003, the number of companies paying dividends to their
shareholders had been on the decline for a quarter of a century,
according to the American Shareholders Association. That trend
reversed dramatically with the passage of the Jobs and Growth Tax
Relief Reconciliation Act of 2003 (JGTRRA) on May 23, 2003. Among a
host of other tax law changes designed to jump-start the economy, this
piece of legislation temporarily reduced the top individual income tax
rate on corporate dividends to 15%. It also reduced the top individual
income tax rate on long-term capital gains to 15%. The JGTRRA has a
sunset provision that kicks in 2009."
"Typically, a closely held C corporation has avoided double taxation
either through reducing a majority of its profits by granting a bonus
to its owners/employees or through deferring the second tax by leaving
the profits in the corporation as accumulated earnings. In fact, many
recent tax court cases related to closely held C corporations involve
either the recharacterization of a bonus as a nondeductible dividend
or the nonpayment of sufficient dividends relative to profits, which
subjects the C corporation to the accumulated earnings tax.
With the reduction in tax rates on dividends, a closely held
non?personal service C corporation should consider distributing a
greater portion of its profits as a dividend rather than as a bonus.
By distributing a larger portion of its profits as a dividend, a
closely held C corporation can take advantage of the lower corporate
income tax rates for taxable income under $75,000 and can reduce its
payroll taxes. For example, if a closely held C corporation normally
reduces its taxable income to zero by providing the sole
owner/employee an annual bonus of $150,000, the taxes paid by the C
corporation and the owner/
employee total $72,000. However, if this same C corporation decides to
pay the sole owner/employee a bonus of $75,000 and distribute the
remaining $75,000 as a dividend, the total taxes paid by the C
corporation and the owner/employee are $61,000, a total tax savings of
You do have to watch large fluctuations in salary/bonuses/dividends
from year to year, which will probably catch the eye of the IRS.
"Accumulated earnings. Prior to the reduction of the tax rates on
dividends, many closely held C corporations would accumulate earnings
in the corporation until liquidation in order to take advantage of
lower capital gains tax rates. Closely held C corporations would also
buy back stock from their owners/employees to create capital gains
with no real change in the ownership. The new parity between most
capital gains rates and dividend rates also reduces or eliminates the
need to pursue strategies to structure transactions as sales of
capital assets instead of dividend distributions (e.g., stock
redemptions or certain types of liquidations).
With the same income tax rates applying to both dividends and capital
gains, it is unnecessary for a C corporation with a large amount of
accumulated earnings to devise strategies to convert ordinary income
into capital gains for its owners/employees. A closely held C
corporation with large accumulated earnings should distribute, as
dividends, as much as possible before the reduced rate expires in
2008. Substantially reduced accumulated earnings will allow the
corporation to ?rebuild? its accumulated earnings after the tax rates
on dividends revert to their prior levels. If the corporation adopts
this strategy, it should ensure that the reduction in accumulated
earnings does not violate any existing debt covenants, which could
cause problems that outweigh the tax savings."
Business taxes are as follows:
Corporate Income Tax Rates--2006, 2005, 2004, 2003, 2002, 2000
Taxable income over Not over Tax rate
$ 0 $ 50,000 15%
50,000 75,000 25%
75,000 100,000 34%
100,000 335,000 39%
335,000 10,000,000 34%
10,000,000 15,000,000 35%
15,000,000 18,333,333 38%
18,333,333 .......... 35%
Personal income tax rates are as follows:
If taxable income is over-- But not over-- The tax is:
$0 $7,300 10% of the amount over $0
$7,300 $29,700 $730 plus 15% of the amount over 7,300
$29,700 $71,950 $4,090.00 plus 25% of the amount over 29,700
$71,950 $150,150 $14,652.50 plus 28% of the amount over 71,950
$150,150 $326,450 $36,548.50 plus 33% of the amount over 150,150
$326,450 no limit $94,727.50 plus 35% of the amount over 326,450
Married filing jointly:
If taxable income is over-- But not over-- The tax is:
$0 $14,600 10% of the amount over $0
$14,600 $59,400 $1,460.00 plus 15% of the amount over 14,600
$59,400 $119,950 $8,180 plus 25% of the amount over 59,400
$119,950 $182,800 $23,317.50 plus 28% of the amount over 119,950
$182,800 $326,450 $40,915.50 plus 33% of the amount over 182,800
$326,450 no limit $88,320.00 plus 35% of the amount over 326,450
Schedule Y-2 ? Married Filing Separately
If taxable income is over-- But not over-- The tax is:
$0 $7,300 10% of the amount over $0
$7,300 $29,700 $730 plus 15% of the amount over 7,300
$29,700 $59,975 $4,090 plus 25% of the amount over 29,700
$59,975 $91,400 $11,658.75 plus 28% of the amount over 59,975
$91,400 $163,225 $20,457.75 plus 33% of the amount over 91,400
$163,225 no limit $44,160.00 plus 35% of the amount over 163,225
Schedule Z ? Head of Household
If taxable income is over-- But not over-- The tax is:
$0 $10,450 10% of the amount over $0
$10,450 $39,800 $1,045 plus 15% of the amount over 10,450
$39,800 $102,800 $5,447.50 plus 25% of the amount over 39,800
$102,800 $166,450 $21,197.50 plus 28% of the amount over 102,800
$166,450 $326,450 $39,019.50 plus 33% of the amount over 166,450
$326,450 no limit $91,819.50 plus 35% of the amount over 326,450
Let's say that your business makes $1,000,000 in profit and you split
that with your partner equally, so you each have $500,000 in profit
(and let's assume that this is your only income and that you're
single). If you pay all that to yourself as a salary, you would simply
be taxed on all of that as personal income and the corporation would
have no profits to be taxed. If, however, you paid yourself $50,000 as
a salary and the corporation $450,000 and gave it back to you as a
dividend to save on taxes, here's what would happen:
single personal income taxes on $500,000:
$94,727.50 plus $60,742.50 (35% of the amount over 326,450)= $155,470 in taxes.
Now, let's look at it the other way:
(you pay yourself $50,000 as salary and the company $450,000 in profits)
income tax on $50,000--
business taxed on that other $450,000 as profit would equal:
34 percent = $153,000
taxes on dividends given back to you of $297,000 (what's left after taxes):
(15 percent) = $44,550
total taxes paid: $350,550
As you can see, in this example, funneling the money through your
business doesn't help AT ALL as far as taxes go. This can change as
you make more and more money, however (and works best if you make in
the millions). However, until you are making in the millions of
dollars, you are probably still better off counting the money as
personal income. And since you are being taxed twice on whatever money
you pay to yourself as dividends,it really doesn't matter how many
millions you would make, you would still be paying more in taxes.
Since I'm not sure exactly how much you make and how much the company
will be making, I can't comment on specifics, but I can say that your
personal income will probably have a better tax situation than the
business will, after both corporate and dividend taxes are taken from
the money. If after seeing this, you don't mind that your money from
the business would be counted as personal income, an LLC might suit
your needs better than a C-corp. Or, you could simply keep with a
C-corp and pay yourself and your partner all the profits of the
company as salaries. (And keep in mind that with an LLC you'll most
likely pay self-employment taxes of Social Security and Medicare,
adding up to 15 percent taxes.)
How do you go about incorporating?
I would advise you to see an experienced CPA, with experience in
dealing with business incorporations, to look over your paperwork or
perhaps to do your paperwork for you if you wish. One mistake could
easily cost you later on in this process, so it is probably worth
paying for a good CPA's services now rather than regretting that you
did not later. A lawyer can help but is probably not as knowledgeable
in this area as a CPA would be, unless they are specifically
specializing in business concerns.
Corporate.com seems like a legitimate website which could work well
for setting up the business, especially since you want someone else to
take care of the paperwork for you. There are some good reviews of
their services on this website:
They would be less expensive than a lawyer and they would certainly
have experience incorporating your type of business in your state. I
could not find much information on them online beyond the reviews
above. Websites that are outright frauds or don't offer what they
promise they will often have large volumes of complainants showing up
in search results for those companies, and corporate.com seems to be
clear in that respect. There is no harm in trying out their services,
since they do offer a bit of a guarantee and what you pay them can be
considered a business expense.
This "corporate veil" protection could be helpful:
What else will be involved in forming the corporation will vary state
by state. You will have to have articles of corporation and
non-disclosure agreements-- basically, lots of paperwork. A good CPA,
lawyer or a company such as corporate.com should be able to do the
work for you competently, and I would suggest using the services of a
professional for something as important as this. Trying to do it on
your own and making an error could prove to be quite costly later.
While you have the services of a professional, you might want to go
over the types of corporations and get absolutely solid legal advice
(something Google Answers cannot provide you as seen by the disclaimer
below) on what kind of corporation is perfect for your needs. Talking
to an experienced professional one-on-one is invaluable in a situation
like this, although I hope I've provided you with a basis to get
started with. Thirdly, they could tell you whether you have any
special circumstances which would make incorporating in Nevada or
Delaware helpful or not. I've provided my advice on all these
questions, but I cannot know as much of your situation as a personal
consultant would and I am also no lawyer. For these other reasons, it
could be worth your while, if you have special circumstances which
mean that you might want to seek a professional's advice on
incorporating in Nevada, to see a CPA or lawyer even if you are doing
the actual incorporation with corporate.com.
(on Google and Google Groups)
"foreign corporation" + internet business
llc s corp c corp
dividends business tax rates
corporate tax rates
personal income tax rates
If you need any additional help or clariifications, let me know and
I'll be glad to help. Best of luck with your business!