How Should I Legally Structure My Startup Business?
Along with the countless other things a start-up has to deal with when setting up a company, there is the major decision of how the company should trade legally. Establishing it correctly at the outset is crucial and could eliminate many issues along the way. It could also have profound implications for the financial future of a start-up and the company.
Essentially there are four types of business structure:-
Sole trader Partnership Limited company Limited liability partnership
A sole trader is someone who conducts a business or trade and has made no arrangements to be any of the other three types of business format. There is no mandatory central registry of sole traders so your affairs are entirely private. All the profits are counted as personal taxable income, the business assets will be personal property and the amount of tax payable is the same whether or not money is drawn out of the business. The owner is personally liable for any business debts or any other legal claims that may arise, such as product liability.
A partnership is where two or more people agree to trade as a unit and are essentially “sole traders” who share the profits and losses. There is no mandatory central registry of partnership businesses so again affairs are entirely private. It is imperative for the partners to draw up a partnership agreement that governs the conduct between them and deals with matters such as sharing profits, responsibilities and terminating the arrangement. Each partner may find they are personally liable for the actions of the other partner.
A limited company is a legal creation which is established in law and governed by the Companies Acts.
The registration process for a limited company is called Company Formation. It is advisable to use a company formation agent or an accountant to ensure the company is set up correctly.
Limited companies are registered at Companies House where a live database of all UK limited companies is kept and they are a distinct and separate entity from their owners and the people who run it. It has its own status for taxation, financial and general legal purposes.
An off the shelf company is a limited company that has been pre-registered with a name and company number and can be used to trade immediately.
The crucial difference between a limited company and a sole trade / partnership is the protection from personal liability for business debts. Unless a personal guarantee is signed or there is fraudulent trade, a limited company is “limited” in the sense that its owners are not liable for its debts. Some people see a limited company as an insurance policy, especially for a new or a high risk business. Many people have lost their savings and other assets because they started up not “being limited”.
On the flip side, unlike a sole trader who can draw money out of the business without incurring a tax charge, a company director would have to be paid under PAYE (including benefits such as a car or healthcare) and the shareholders are rewarded by means of a dividend, subject to the regulations.
Below is a summary of the pros and cons that are typically cited when considering forming a limited company.
Advantages Shares of the business can be given to others e.g. family or friends It may be easier to attract investors Obtaining bank loans may be easier There are no higher rate tax bands In the event of a partner leaving or dying it is easier to continue the business It is easier to sell the business There is a better public perception if a company is Limited It can assist in the protection of a name People have more confidence in the business if they can check your company on the public records at Companies House Subcontractors and agency workers may find it easier to obtain work using a limited company
The preparation of annual accounts will probably cost more than a sole trader The public can check up on certain aspects of a business
A limited liability partnership is hybrid of a partnership and a limited company. The LLP is registered at Companies House and is treated like a limited company in most respects but the profits are divided amongst the partners who pay tax on their own share at the rate appropriate to their circumstances. An LLP must have a minimum of two partners and one of the partners can be another limited company. It is a flexible creature but has not proved to be particular popular for small businesses.
As a general rule you should discuss your choice of business format with a qualified accountant prior to commencement – it will be money well spent. In most cases the limited company route is the safest option if one has any concerns whatsoever regarding a potential liability, but ultimately the consideration of risk is but one factor in a decision that may be based on many variables.
Whatever you choose we wish every success.
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