LLC or Corp? The first step to start your business in the United States.

The first step: know your options

The first thing you should take into account are the possible structures under which you can establish your company in the United States. In this sense, we will distinguish the two most used: on the one hand the Limited Liability Company (“LLC”) and on the other the Corporation (“Corporation”) (“Corp”). 

The LLC is a type of company organized under an operating agreement or contract between the owners, called members, which specifies, among other things, how it will be managed and how economic burdens and profits will be divided. Responsibility for debts and obligations of the business is limited for the founders as it is transferred to the company itself.

The LLC is extremely flexible, as it can be structured with great freedom. For their part, Corporations are entities independent of their owners, called shareholders, who are protected from the obligations and responsibilities generated by the company. Ownership is tracked by shares, and each share corresponds to a defined share of control of the business and the right to the economic advantage of it. Now, with that information in your possession, it is time to analyze the pros and cons of each structure. In this sense, it is important to know the possibilities since this election will result in essential and decisive aspects such as the payment of taxes, the possibility of attracting investments, the documentation that must be presented, the personal responsibility of its members, and, ultimately, the operation of your business. 

Tax regime 

As we mentioned, the two business structures are distinguished in terms of the tax treatment applied by the Federal Tax Agency (“Internal Revenue Service”) -IRS-. 

LLCs, meanwhile, are considered pass-through entities for US tax purposes. Taxes do not impact the company since they do not file taxes at the corporate level, but rather their income is reported on the personal income tax returns of their owners. This way, money flows through an LLC and is taxed at the level of the LLC owners (“pass-through”). 

As for Corporations, they can be type “S” or type “C”. 

When a Corporation has fewer than 100 shareholders and they are natural persons Resident in the United States or certain trusts and estates (excluding companies, corporations and non-resident foreign shareholders), the Corporation may request to be classified as an “S” Corporation, whose Its main feature is its tax treatment: the flow of corporate income, losses, deductions and credits is reported on shareholders' personal tax returns and they are taxed at their personal income tax rates. In this way, the company is not taxed on its corporate profits and only the partners are taxed on the profits attributed to them individually. Non-resident foreign citizens in the United States can only choose to establish the “C” Corporation model. 

For their part, “C” Corporations are subject to double taxation: first, at the corporate level, since they pay taxes on their profits. And then, in case of distributing dividends among shareholders, through their personal tax returns. 

At the same time, it is important to consider the implications of choosing to reinvest the profits obtained. In that case, when a “C” corporation reinvests its profits directly into the company instead of distributing dividends, the personal tax burden of its individual shareholders is reduced. On the other hand, the LLC, when declaring its annual profits, will not be able to choose not to distribute them -regardless of whether they are later reinvested-, which implies that its members will be subject to their personal declaration and the subsequent payment of taxes (as long as they flow directly towards them).

Losses

In turn, the tax treatment has interesting implications regarding the company's losses. In that sense, the “C” corporation that has a loss in a given year generally carries the loss against future tax years, where it can be used to offset future profits. While the “S” corporation allows owners to take advantage of losses incurred as deductions on their personal returns. For its part, a loss realized by an LLC can generally be used to offset the owners' income during the same tax year, for example, employment income. 

External investments 

At this point, it is important that you determine if you plan to acquire external capital through investments for your company. In this regard, generally, investors prefer to invest in corporations than in LLCs. 

This is due, on the one hand, to the possibility of corporations selling publicly traded shares and issuing convertible debt and, on the other hand, to the fact that the great flexibility regarding the form of LLCs implies legal work for investors. expensive and substantial, which must be made prior to making an investment, to guarantee what is going to be acquired. 

In addition to this, in “C” Corporations the owners can have different types of shares that allow different levels of dividends to be set. This is one of the reasons why Venture Capital Funds choose this type of company when they offer their financing to companies. Investors are attracted by the potential for dividends if the company makes a profit. 

Conclusion 

You must be clear that the choice of a business structure will determine everything from your daily operations to the way you pay taxes or the personal assets that may be involved. 

For this reason, it will be advisable to choose a structure that provides an adequate balance between its legal benefits and its disadvantages, according to the objectives you establish for your business. 

To do this, it is important that you clearly identify the elements that are most significant or that will have the greatest implications. Although this decision can be a great challenge, by following this brief guide you will be able to analyze the pros and cons of each of the structures analyzed and you will be in a stronger position to choose the one that helps you achieve the goals set and success. of your business.