DO I NEED AN LLC?

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Whenever a client tells me they’ve formed, or plan to form an LLC, I ask…

Why?

Especially if they don’t have partners in their business.

The question takes a lot of people by surprise, because they just assume they need a company to start a business, or they think it’s the only way to achieve liability protection. They often haven’t considered the costs of forming and maintaining an LLC, and even more often don’t know how to operate it prudently.

An LLC (Limited Liability Company) can be a useful structure under certain circumstances, but they aren’t for everyone. Here are some thoughts:

– LLCs are kind of cool. I had an LLC myself, and it felt pretty cool, until I added up all the other factors and costs

– You don’t need an LLC to operate a business

– Limited liability may give you some protection against creditors or liability claims, but it’s not a sure thing

– A single-member LLC doesn’t even exist for federal tax purposes, so it’s exactly the same as operating as a sole proprietor

– Maybe an S Corp would serve your needs better

– There may be a state tax or filing fees for your LLC – the California minimum tax is $800

– You need to stay current with all LLC filing requirements for your state, or you may lose the benefits of the LLC

– Forming an LLC in another state may not save you tax in your home state

– Tax rates are higher on self-employment earnings – with or without an LLC – so you need to make estimated tax payments

– You can make much larger deductible retirement contributions if you are self-employed – with or without an LLC

– You can deduct your health insurance if you’re self-employed – with or without an LLC

Sole Proprietorship

There is nothing to stop you from starting a business without an LLC. When you operate a business in your own name or a DBA, it’s called a Sole Proprietorship. You can buy and sell products or services, buy equipment, rent space and incur operating expenses for your business. If you keep careful records and maintain separate bank accounts, the business can be accounted for separately from your personal activities.

For tax purposes, your business is reported on Schedule C of your personal tax return – Profit or Loss from Business. Your net income is taxed as ordinary income, and is subject to an additional Self-Employment Tax. This is basically your social security and medicare tax that you would pay if you received a paycheck from an employer. The difference is that you pay the employer share of these taxes, too. The calculation is complicated, but it comes to a little under 15%. You need to keep this in mind when making estimated tax payments during the year.

In a sole proprietorship, there is no built-in protection against creditors or liability claims.

Single Member LLC

If you are the only member of your LLC, you are taxed exactly the same as if you were a sole proprietor. A single member LLC is called a Disregarded Entity for tax purposes, which means that the IRS doesn’t even recognize its existence. Your business income is reported on Schedule C of your personal tax return, and you pay the Self-Employment Tax.

The only difference is that, depending on which state you are in, you may have to file a separate LLC tax return or information return, and/or pay an LLC tax or filing fee.

And oh, yeah… there is theoretically some protection against creditors and liability claims.

Limited Liability

Yes, limited liability means that the company is a separate entity for legal purposes, and creditors or legal claimants can only go after the company’s assets. You are only liable to lose any amounts you have invested or lent to the company, and your home and other personal assets are protected. That’s the theory, anyway.

Let’s look at it practically… Is anybody really going to lend money, lease property or give credit to your single member LLC without a personal guarantee from you? I didn’t think so. So what is the benefit of limited liability against creditors if all the LLC debts are your personal responsibility?

And what about liability claims? Sure, you have limited liability, as long as you operate the LLC in a disciplined fashion… and if you aren’t crooked. If a claimant or creditor is determined to go after your personal assets, they may try to “pierce the corporate veil.” That is, if they can demonstrate that you didn’t use separate bank accounts or separate credit cards, and generally didn’t operate the business as an entity completely separate from your personal affairs, they may get past the limited liability protection offered by the LLC. The same goes if they can demonstrate that you behaved fraudulently.

Insurance

How much liability do you expect to have? Most businesses don’t have that much to worry about – how much liability can your IT consulting business or online retail operation really generate? Liability insurance should cover most situations at a reasonable cost, and umbrella insurance would be an added layer of protection. A lot easier than operating and paying for an LLC.

Of course, there are businesses with potentially greater liability. It is common to see LLCs formed for day care facilities and rental properties. This is typically in addition to liability insurance. Just remember to be disciplined in keeping the business separate, and keep up to date on your state filings and payments.

Subchapter S Corporation (S Corp)

Depending on the size of your business, you might be better off forming an S Corp. One of the features of an S Corp is that not all of your income is subject to Self-Employment Tax, as it is in an LLC. There are a lot of issues that need to be weighed in going this route, but there are even more rules that need to be followed to the letter in order to realize the ongoing benefits. I’ve seen many S Corps formed by people who were never taught how to operate them, and left them exposed to unfavorable tax and legal consequences.

Out-of-State LLCs

Some states have high taxes and fees for LLCs. California, for example, has a minimum tax of $800. This gives some people the bright idea of forming their LLC in a state with lower costs. Don’t do it. Your home state – especially California – will catch you, and they will claim that you are conducting business in that state. You will then be required to pay tax and penalties.

Delaware is a very popular state in which to form an LLC, for a variety of reasons. Depending on your home state, you will probably want to register the LLC as a foreign LLC doing business in your state. That is certainly the case in California.

Retirement Plans

You can deduct much larger retirement contributions if you are self-employed. While a regular IRA contribution is limited to $5,500, a SEP IRA contribution can be 20% of your self-employment income, up to a total contribution of $54,000. You don’t need to have an LLC to be eligible for a SEP IRA. The same goes for deducting your health insurance.

Am I saying you probably don’t need a single member LLC? I like to joke that the average life of an LLC among my clients is a year and a half. They don’t mind paying the $800 California tax the first time, because they are full of hope and ambition, but the second time it comes up, it’s pretty hard to see what they are getting for their money… So yeah, I’m saying you probably don’t need an LLC.

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Valuing a Consulting Business

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There are probably hundreds of reasons why you might contemplate selling your consulting business. Among them would be retirement, changing markets, illness or just the urge to move on and do something new.

Who is the buyer?

The buyer will probably be another consultant – either a competitor or a firm with a desire to expand their offering to include your area of expertise. It is unlikely that there will be financiers, or others with no direct experience standing in line to buy your business. There is, however, a pretty good chance the buyer will be a partner or an employee, in which case you need to start talking to financial planners long before you expect to do the transaction.

What are they buying?

When you think of selling the business, you tend to think of it as just that… the business. When we start thinking about its value, though, it is a good idea to put ourselves in the buyer’s position. What specifically does the buyer hope to acquire?

–          Your client list / existing relationships.

–          Expertise in a new field, or the opportunity to serve a backlog of client demand.

–          Name and reputation.

–          An instant start in the business with a functioning team – it saves the time, energy and uncertainty of building the business from scratch… as long as the cost isn’t too high.

–          Ability to leverage your client base – the buyer can provide services from your business to his existing clients, or alternatively, sell new services to your current clients.

–          Owner to stay on through a transition period – to facilitate the smooth transfer of relationships, retention of staff, transfer of knowledge and expertise.

What is the price?

Consulting firms typically have relatively little in the way of assets, so one way or another, the selling price is likely to be a multiple of earnings or cash flow. EBITDA (earnings before interest, depreciation and amortization) is a traditional measurement of cash flow, but why not add back your salary and any special items such as health care and travel that could be considered personal, and would not be costs to the company after the sale? Also consider accounting, legal, insurance etc. costs that will go away after the acquisition.

The value of a single-person operation will probably be lower because of the impracticality of having the seller stay on through a transition period, and the higher risk of losing clients.

The purchase price will depend on the exact fit with the buyer’s business, and the time and cost of entering the field. Remember that if you ask too high a price, the buyer may decide to start the business from scratch, maybe even hiring your best employees away from you, and competing for your existing clients.

Rules of thumb – selling prices generally fall between 2.5 and 3.5 times earnings (high utilization rates and low costs will result in a higher value) OR .75 to 1.25 times gross revenue, which probably yields the same value, depending on your profit margins.

The purchase price will be higher if you stay on through a transition period. You would draw a salary, of course, and it doesn’t hurt to be there to keep an eye on your payout.

Payment Structure

You’ll get the highest price if it is paid out over time, say 2 – 3 years. An up-front payment in the range of 25% is common.

Remember that if a buyer pays 3 times earnings up front, he will get no return on his investment for 3 years, a situation that few investors can tolerate. Even if there are synergies that result in additional business, the buyer would probably have to lay out additional investment to realize them.

 

Do you know who to call if you need help selling your business?