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Asheville Business Attorney

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Perry Fisher of Fisher Stark, P.A., has years of experience helping Asheville businesses with complex legal issues.

Asheville Business Lawyers

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NC Business Entity Considerations

“What type of company should I form?”

This question is the most frequently asked question when forming a new business. Of course, there are many factors to consider when choosing the type of business entity.For example, factors affecting Asheville business include funding, number of shareholders, tax treatment of the entity, how investors will realize gain or income from their investment, the time horizon for the company, and many others.Fisher Stark, P.A. offers the chart below to help our clients consider and select the right entity for their new business venture. But please note we have only addressed a few of the issues to consider when forming a new company.
ConsiderationsC CorporationS CorporationSole ProprietorPartnershipLimited Liability Co.
1. Formation:
A. MethodArticles of IncorporationArticles of IncorporationNonePartnership agreement; certificate filings for limited partnershipArticles of Organization
B. Owner Eligibility
1. Number of OwnersNo limit100OneTwo or more if general partnership; one or more general and one or more limited for limited partnershipOne or more for formation of NC LLC; no limit after formation
2. Type of OwnersNo limitationIndividuals and certain trustsIndividualNo limitationNo limitation
3. Affiliate LimitsNo limitationNo subsidiaries (except some holding)No limitationNo limitationNo limitation
C. Capital Structure
1. EquityNo limitation (multiple classes permitted)Generally one class of stock except non-voting class allowedNo stockNo limitation (multiple classes permitted)No limitation (multiple classes permitted)
2. DebtNo specific limits but debt/equity ratio may affect tax statusSafe-harbor for debtNo specific requirementsNo specific limitsNo specific limits
D. Status Determination
1. Election by EntityNo election requirementsRequired IRS electionNo election requirementsNo election requirements but state law filing; limited, must meet safe-harborNo election requirements; must meet safe-harbor
2. Owner ConsentsNone requiredConsent requiredNone requiredNone requiredNone required
E. LiabilityLimited to shareholder’s capital contributionsLimited to shareholder’s contributionsUnlimitedGeneral partners jointly and severally liable; limited partners are generally limited to capital contributionsLimited to member’s capital contribution
F. Continuity of ExistencePerpetualPerpetualLimited to life of ownerSpecific agreed term; may be terminated earlier by death, disability or insolvencySpecific agreed term; may be terminated earlier by death, disability or insolvency
II. Income Tax Issues:
A. ManagementBoard of Directors, officersBoard of Directors, officersOwnerAll general partners, managing partners may be appointedMembers or Manager
B. Tax yearAny year permitted (limited for personal service corporation)Generally calendar yearCalendar yearGenerally calendar yearGenerally calendar year
C. Tax IncomeCorporate levelShareholder levelIndividual levelPartner levelCompany level
D. ElectionsCorporate levelCorporate levelIndividual levelPartnership levelCorporate level
E. Allocation of Income of OwnersNot permitted (except through multiple equity structure)Not permitted (except through debt/equity structure)N/APermitted if substantial economic effectPermitted if substantial economic effect
F. Character of IncomeNo flow-through to shareholdersFlow-through to shareholdersFlow-through to individualFlow-through to partnersFlow-through to members
G. Investment InterestNo limitsShareholder investment interest limited to net investment income; corporation investment interest flows throughLimited to new incomePartner investment interest limited to net investment income; partnership investment interest flows throughMember investment interest limited to net investment income; LLC investment interest flows through
H. Net Operation LossesNo flow-throughFlow-through to shareholders (limited to basis); no basis for debts guaranteedFlow-through to individualFlow-through to partners (limited to basis)Flow-through to members (limited to basis)
I. Net Capital LossesNo flow-through, but five year carry forwardFlow-through to shareholdersFlow-through to individualFlow-through to partnersFlow-through to members
J. Undistributed EarningsSurtax on accumulations of earnings in excess of reasonable requirements for current and future business needs; $250,000 safe-harborNo restrictionsN/ANo restrictionsNo restrictions
K. Effects of Statutory LimitationsImpose at corporate levelImposed at shareholder levelImposed at individual levelImposed at partner levelImposed at member level

Western North Carolina Business Lawyers Who Care

Avoiding trouble in the future means contacting an experienced Asheville business lawyers like those at Fisher Stark, P.A. today. Fisher Stark, P.A., is based in Asheville, NC, but also serves surrounding communities throughout Western North Carolina, including Buncombe County, Henderson County, Madison County, Haywood County, Polk County, McDowell County, Jackson County, Swain County, Transylvania County, and Cherokee County. We assist new businesses. growing businesses and dissolving businesses. We serve local companies, partnerships. and entrepreneurs. Call (828) 505-4300 or contact us here for a free consultation today.

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Asheville NC Attorneys, Perry Fisher, Brad Stark, and Megan Silver will assist you with your personal injury, property loss, and court-related issues

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828-505-4300
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