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Why your startup should be a Delaware C-Corp, not an LLC

launch.gust.com

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Re: Why your startup should be a Delaware C-Corp, not an LLC

#41

Here's something I'm curious about. First off, I understand that few of you are lawyers, and any of you who are aren't being paid by me so none of this constitutes legal advice. :) I'd certainly talk to a lawyer before acting on it in any case, I just can't wrap my head around how Delaware is such an advantage. I read that Delaware C corps/LLCs are the way to go because they're inexpensive. I'm in Texas. It looks lik…

Generally the purpose of registering a foreign corporation in a state is to have access to the courts of that state if it needs to, e.g., sue a vendor. You're almost always going to be able to use your home state's court (although jurisdiction may be harder to obtain) or a federal court depending on the facts. Also, registering in a foreign state serves as somewhat of a soft "trademark" in that another entity of the same name cannot be formed in that state. In short, foreign registration may not actually be required under many circumstances.

If it is, you can always incorporate at home and re-domicile concurrent with the closing of a funding round on the investor's dime.

Re: Why your startup should be a Delaware C-Corp, not an LLC

#42
post #9

Earlier quoted context omitted.

It's pretty quick to set up a C-Corp too—it's much, much more annoying to change the LLC into a C-Corp when you do want to fundraise.

I've never done that, but that's not the advice I've gotten from lawyers. In particular, what I've been told is that C-Corp or LLC, there's going to be annoying conversion work at your first VC round.

I just went through​ this. Started as LLC with co-founders. Once we started seeking money we up-scaled to C-Corp - give the lawyer a few bucks, wait a week, sign some stuff. Mostly painless.

Going to a C-Corp too early can be costly, moving up from a proven model LLC is easy, limits cost and risk

Re: Why your startup should be a Delaware C-Corp, not an LLC

#43
Sure, he's correct -- if and only if make a lot of assumptions.

But he is talking about startups, and there, from all I can see and without his many assumptions, a Delaware C-Corp is a lot more time, lawyer money, other overhead, and botheration than just an LLC.

Sure if I have co-founders, which YC seems to want but I don't, or Sequoia wants to write me an equity check for $20 million, which, by the time they would, I wouldn't need, want, or accept it, I'd want a Delaware C-Corp.

But, IIRC, with a C-Corp, I have to have a BoD that I have to keep happy, or they can and very well may fire me -- take my company. So, a Delaware C-Corp has me take a lot of the power I have as CEO and 100% owner of my startup and hand a lot of that power, control, and financial value to a BoD for no good, and many really bad, reasons. "Financial value"? Sure, the BoD could fire my ass, put in one of their buddies as CEO, and the BoD and their buddy could issue nice stock options to the members of the board. Due to vesting, etc., I could leave with nothing, not even $0.00. They could flatly just steal my company from me including all the value, cash, intellectual property, promise, everything -- 100%.

There's nothing seriously wrong with, and a lot of important advantages to, being CEO and 100% owner of a successful LLC startup. Or, all across the US there are pizza shops, flower shops, auto body shops, dentists, etc. that don't have a BoD. My startup has a lot more financial promise than an auto body shop, but I don't want a BoD either.

E.g., with a BoD, have to have board meetings. Then the members of the board have to travel to the meeting. So, guess where the money comes from for their travel (first class air, limo service?), lodging (four star hotel?), fancy dinners? No thanks.

I learned early on that I'm not always good at pleasing people, even if I do really good work. E.g., my Ph.D. is in applied math, and I did the research independently with no faculty direction or input, picked the problem before I went to grad school, and did the core research in six weeks alone in the library in my first summer. I gave a graduate seminar on my work, designed and wrote the illustrative software, wrote and typed the dissertation, stood for my oral exam (majority of the faculty from outside my department, Chair, Member, US National Academy of Engineering, from outside my department, majority people I'd never met), passed, first time, without revision, from a world famous, world class research university, and got my Ph.D.

BUT: In the eighth grade, the arithmetic teacher gave me a D (as is common for boys of that age, my handwriting was awful and so was my clerical accuracy) and fervently advised and urged me never again to take anymore math. Right, honey: I didn't take freshman calculus, taught it to myself, started on sophomore calculus in a course using the same text Harvard did, found the course easy, and made an A. In my high school, all the female teachers (gossips?) were all conviced I was a poor student and a poor math student, but the only male math teacher I had sent me to a state math tournament, my aptitude and achievement tests showed that I was one of the best math students in the school, an especially good high school, I got sent to an NSF summer math program, and on the school's SAT math scores, of 1-2-3, I was #2. #1 went to Purdue. #3 went to MIT. In college I wrote on group representations and got Honors in math. My math GRE score was 800. Then I was sent to another NSF program, in axiomatic set theory and modern analysis. But my high school female math teachers thought I was a poor math student. I was a very good math student, but there was no way I could please those females.

Being good is not enough. Instead, people can get totally pissed at you for no good reason, even if you walk on water in warm weather.

A BoD might just hate my guts. E.g., if I presented some original math derivations, with advanced prerequisites, for a step forward for part of the business, say, as part of getting the budget approved, the BoD might soil their clothes, the board room furniture, and the carpet on the way to the rest rooms and come to deeply, profoundly, bitterly hate and despise me, all for no good reason.

If have something rare and good, don't dilute it with a lot of mediocre nonsense. If are lucky enough to have Michelangelo painting the ceiling, don't send in a lot of house painters to give him advice. Or, when Stravinsky wrote Right of Spring, some Tin Pan Alley guy wanted to recommend a good arranger for Stravinsky's music. For such nonsense, just say not only "no" but, if they insist, "hell no".

Reporting to a BoD has a big downside, a huge risk for no good reason, and nearly no significant upside. E.g., there is a good chance that not one BoD member of an information technology startup anywhere in the world has even the math prerequisites to understand the crucial, core math I derived for my startup; not understanding the math, they will not be able to do their jobs and will hate me. So, no way do I want to put my career and startup in the hands of a BoD that hates me.

Re: Why your startup should be a Delaware C-Corp, not an LLC

#44

A Logical Fallacy: We did something we think might be right for us (but we don't really know yet), therefore everybody in the entire world should do exactly the same thing regardless of their circumstances, and divorced from whether or not this actually works for us or not.

"By convincing you to do this thing I did, I will help convince myself that I did the right thing when I did it."

Re: Why your startup should be a Delaware C-Corp, not an LLC

#45
post #34

Earlier quoted context omitted.

It's pretty quick to set up a C-Corp too—it's much, much more annoying to change the LLC into a C-Corp when you do want to fundraise.

When it is time for fundraising, is it possible to just create a new C-Corp, then sell the assets of the LLC to the C-Corp? Are there major tax implications? Is it possible to sell the assets for a $1? Or would that be in violation of some tax rule?

It's easy. Or the C-Corp owns the LLC, or IP assignment. Just move the assets over, not an actual sale.

Re: Why your startup should be a Delaware C-Corp, not an LLC

#47
post #13

Earlier quoted context omitted.

Hmm, I'm not sure that's accurate. What would you be converting to if your company was already a C-Corp?

A C-Corp with the structure your venture capital firms expect.

There may be more structure required but starting off from a C corp obviates the need to transfer control of assets (particularly intangible ones like copyrights to source code).

Re: Why your startup should be a Delaware C-Corp, not an LLC

#48

Most angel investors and VCs will also insist that your company be a Delaware C-Corporation for legal reasons I keep hearing this, but what are these reasons?

The reason is that many of their LPs (e.g. pension funds) are non profits, and they can't have taxable income flow up to them or their Unrelated Business Taxable Income will threaten their nonprofit status. VCs are flow-thru entities so any income hitting them from _their_ investments would hit their LPs. Therefore they can only invest in blocking entities.

I agree with this, but out of curiosity, presumably the funds have their own blockers/SPVs below that they could just route their investments through and allow other investors in the startup to receive the flow-through treatment (like we would in hedge/PE). My assumption was that the standardized governance structure of a Corp was also appealing to VCs who prefer it to the possibility of being screwed by an adverse amendment to the LLCA, etc.
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