LLC vs. Incorporation: Which Should I Choose

By:  Investopedia 

The decision to form either a limited liability company (LLC) or a corporation depends on the type of business that an individual is creating, the possible tax consequences of forming the entity, and other considerations. Both types of entities have the significant legal advantage of helping to protect assets from creditors and providing an extra layer of protection against legal liability.

In general, the creation and management of an LLC are much easier and more flexible than that of a corporation. Still, there are advantages and disadvantages to both types of business structures.

KEY TAKEAWAYS

  • The creation of a limited liability company (LLC) is a much simpler process than creating a corporation and usually requires less paperwork.
  • LLCs are created under state law, so the process of forming one depends on the state where it is being filed. Once an LLC is formed, it needs to define the roles and responsibilities of the members by creating an operating agreement.
  • The Internal Revenue Service (IRS) does not view an LLC as a separate vehicle for tax purposes, which allows for greater flexibility. Members can choose how they are taxed. They can be treated as a sole proprietorship, a partnership, or a corporation.
  • Two types of corporations can be formed: an S corporation and a C corporation. An S corporation is a pass-through entity, like an LLC, where the owners are taxed on profits and losses of the corporation. A C corporation is taxed at the corporate level, separately from its owners, through a corporate income tax.
  • Corporations offer more flexibility when it comes to their excess profits. Whereas all income in an LLC flows through to the members, an S corporation is allowed to pass income and losses to its shareholders.

Ease of Forming an LLC

Creating an LLC is a much simpler process than creating a corporation and generally takes less paperwork. LLCs are under the jurisdiction of state law, so the process of forming an LLC depends on the state where it is being filed. Most states require filing articles of organization with the secretary of state, and some states allow for them to be filled out online. A few states require an additional step of filing a public notice, often in local newspapers. Once these steps are completed, the LLC is officially formed.

Once an LLC is formed, it’s good business practice to set out the roles and responsibilities of the members or owners. Most LLCs use an operating agreement to define these roles. Drafting an operating agreement is not necessary for an LLC to be valid, but it is a prudent course of action. If no operating agreement is created, then an LLC is governed by the default rules contained in state statutes.

The operating agreement sets forth the rights and responsibilities of the members. It can define the business relationship and deal with issues of capital structure, allocation of profits and losses, provisions for the buyout of a member, provisions in case of the death of a member, and other important business considerations.

Tax Flexibility of an LLC

The Internal Revenue Service (IRS) does not view an LLC as a separate vehicle for tax purposes, which allows for greater flexibility. Members can choose how they are taxed. They can be treated as a sole proprietorship, a partnership, or a corporation. The most common tax option of an LLC is taxation similar to a sole proprietorship. A member has to pay taxes themselves on the profits of the LLC as opposed to the LLC paying the taxes. The profits and losses of an LLC are passed through the business to the owner. The owner then has to report the profits or losses on their own personal tax returns. The LLC itself does not pay any corporate tax. This method avoids double taxation, which is a drawback of corporations.

Disadvantages of an LLC

Although an LLC does come with plenty of advantages, there are some disadvantages to consider. LLC members may have to pay self-employment tax, which includes a 12.4% tax for Social Security and a 2.9% tax for Medicare. Another disadvantage is the differences among states in the statutes that govern LLCs. The different rules and regulations can result in additional paperwork and inconsistent treatment across different jurisdictions.

There are other drawbacks to an LLC as well. The purpose of an LLC is to protect its members from any liability. If the company fails to meet its obligations, then creditors can target only the LLC, not the assets of the members. However, there are certain situations in which an LLC can be automatically dissolved, leaving members open to risk. Automatic dissolution can be triggered if an LLC fails to file with the IRS on time or a death or withdrawal of any member occurs unless succession provisions are outlined in the operating agreement. 

Advantages of a Corporation

Despite the ease of administration of an LLC, there are significant advantages to using a corporate legal structure. Two types of corporations can be formed: an S corporation and a C corporation. An S corporation is a pass-through entity, like an LLC, where the owners are taxed on profits and losses of the corporation. A C corporation is taxed at the corporate level, separately from its owners, through a corporate income tax C corporations are the most common type of corporation.

C corporations have the advantage of allowing profits to remain with the corporation and paying them out as dividends to shareholders. Also, for businesses that eventually seek to issue stock, a C corporation can easily issue shares to raise capital for further expansion of the business.

Corporations offer more flexibility when it comes to their excess profits. Whereas all income in an LLC flows through to the members, an S corporation is allowed to pass income and losses to its shareholders, who report taxes on an individual tax return at ordinary levels. As such, an S corporation does not have to pay a corporate tax, thereby saving money, as corporate taxes are higher than ordinary taxes. Shareholders can also receive tax-free dividends if certain regulations are met.

Disadvantages of a Corporation

There are significant disadvantages to creating a corporation regarding the amount of complexity involved. It requires a great deal more paperwork, meeting many more guidelines, electing a board of directors, adopting bylaws, having annual meetings, and creating formal financial statements. They generally have more burdensome record-keeping requirements than LLCs.

There is also the issue of double taxation for corporations. This refers to taxes being paid twice on the same income. This is because corporations are considered separate legal entities from their shareholders. Thus, corporations pay taxes on their earnings, while their shareholders also pay taxes on any dividends that they receive from the corporation.

Am I required to have a limited liability company (LLC) or a corporation to hire employees?

No. You can hire employees or contractors as a sole proprietorship, although you may expose yourself to greater risk. An (LLC) or a corporation protects your personal assets by creating a structure for your business separate from your personal finances.

Which is more expensive to set up: an LLC or a corporation?

Fees for incorporating or creating an LLC vary from state to state. Forming an S corporation can range from $100 to $250 for only the state incorporation fees, not including lawyer fees. An LLC can range from $50 to $500, depending on the state.

Does an LLC require more than one member?

A single-person business can be an LLC.

The Bottom Line

Though similar in many ways, LLCs and corporations have quite a few distinctions that bring both advantages and disadvantages to each. As an individual starting their own business, it’s important to understand all of the nuances involved and choose the right structure for your company.