Earlier quoted context omitted.
> you can probably get one via 1-click on Amazon now That is almost literally true, only it's Nolo instead of Amazon.
Why is it dumb to do business without incorporating?
If I Launched a Startup - Cheat Sheet
31–39 of 39 posts
Re: If I Launched a Startup - Cheat Sheet
#32"If I Launched a Startup - in the US" this should be named.
Maybe. But maybe not. I started my startup in Canada and still incorporated in Delaware. Very glad I did.
I have a sole proprietorship in Finland. Sometimes I've given thought to having this type of standard corp in US, as if I have another hit Facebook app or whatever it seems like it would make me an easier entity for others to deal with.
Apart from the tax issues, I worry about having to pay an US lawyer high US wages for advice / set up fees. Maybe I'm starting to believe all the news stories too much, but doesn't being incorporated in US also make you much more likely to be the target of some frivolous patent / other lawsuit?
Re: If I Launched a Startup - Cheat Sheet
#33Earlier quoted context omitted.
Please talk to the layer to understand liability for your particular business. As a officer of a company you are still personally liable for some things and D&O will not cover it. In other words, don't think incorporation will make your private assets 100% safe.
You are particularly exposed when it comes to torts you personally have a hand in, and possibly for contracts where it can be entered in bad faith. That said: I'd be very surprised to hear a lawyer say that incorporation makes you more exposed. You make a good point, but I'm still pretty sure the default should be "incorporate somehow".
Re: If I Launched a Startup - Cheat Sheet
#34Note that while these are probably the best practices for a company that knows it is immediately going to take funding , LLCs and S-Corps are valid choices for companies that aren't sure or that are going to be making money before they take funding. The S-Corp in particular has some attractive features: it simplifies equity grants to employees compared to an LLC, and taxes are easier to deal with in a C-Corp (there's…
Agreed. The primary issue with an S-to-C conversion is that any assets with built-in-gain (i.e., worth more now than when they were acquired) may result in "immediate" income to the corporation. This is not an issue for most startups, unless they start off spending lots of money (i.e., Color). (Also, "immediate" in tax world really just means they'll be part of that year's income.) The conversion itself is otherwise…
Re: If I Launched a Startup - Cheat Sheet
#351. A Delaware C-corp is often a fine choice for startups but be careful not to make it a fixed rule. Whatever you do must fit your circumstances and not be something you do simply because it is declared from on-high. You don't want to find yourself in the position of the young founder who ultimately said "why incorporating my startup [in Delaware] was my worst mistake" (see http://news.ycombinator.com/item?id=2399139). And, as tptacek points out variously on this thread, sometimes an LLC or an S-corp might be a better fit for you or your team - this choice is often tax-driven, though it can also tie to the less formal management structure and the often lower cost of an LLC (see my comments here on some pluses and minuses of LLCs in a startup context: http://news.ycombinator.com/item?id=1276724). My point: think it through before making this choice (on domicile, here are some thoughts on how local domicile might in some cases be better than Delaware: http://grellas.com/faq_business_startup_002.html).
2. C-corp is a particularly good choice for 2011 if you plan to hold the stock in your venture for more than 5 years with the hope that you can sell it free of any federal capital gains tax and also free of AMT. Not all stock grants will qualify, even in a C-corp, and so you should check with a good CPA (for some of the relevant factors, see my comments on so-called QSB stock: http://news.ycombinator.com/item?id=2018041).
3. Vesting for founders is a mix-and-match process and does not have to be uniform for all founders. Those who have not yet make significant contributions to a venture at the time of entity formation normally should take their interest subject to vesting - otherwise, they might walk away with a large piece of equity before having earned it. This wouldn't necessarily apply to all founders, however, and it is at times appropriate that one or more founders on a team get their stock (or at least a significant part of it) free and clear of vesting requirements. Otherwise, there is an unfair risk of forfeiture placed upon them. Also, the one-year cliff idea often doesn't fit with founders, in my experience; more typically, there is some sort of immediate pro-rata vesting (monthly, quarterly, etc.).
4. The "lock down the IP" point is often overlooked, especially by founders trying a DIY approach: make sure you have not only technology assignment agreements to capture all IP generated in the pre-formation stage but also invention assignment / work-for-hire agreements to make sure the company owns all IP generated by founders after they have their initial stock (the company does not automatically own it just because they are owners doing work on the venture). The idea of IP has its detractors today but your company will suffer in fund-raising and on exit if holes exist in these areas. All it takes is one bad episode - anything from a founder bolting to form a directly competitive venture using the same IP to an ex-founder filing suit to block further company development on IP that he claims he owns - to convince most founders that IP protection is in fact vital in the early-company stage for most ventures.
5. One other very important item: make sure to separate your founder grants from any large cash investments that are done for equity. If you don't, it will create tax risks because, if cash and services are contributed for stock at the same time and for the same type of equity, the service providers (i.e., those contributing the "sweat equity") can potentially be taxed on the value of the equity received as measured by what might be a high company valuation (e.g., you get 50% and an investor gets 50%, you contribute your talents and services and the investor puts in $200,000, all for common stock - result: you are at risk for having received up to $200,000 income item on which you must pay tax). Not a particular tax risk if investors use convertible notes (because the stock is not priced in that case) but a potentially serious one if investors get stock. The relevant planning tip: while you don't need to unduly front-load expenses, don't wait too long before setting up the entity either - you should generally do this before you have your investors lined up and about to sign.
Re: If I Launched a Startup - Cheat Sheet
#36"If I Launched a Startup - in the US" this should be named.
First, half or more of the points apply globally. Second, there are a lot of qualifications beyond domicile. This type of knee-jerk post is unhelpful and tired.
There has been coverage about German business clones of successful US start-ups. Also there have been complaints that some start-ups "don't think big" and expand their market coverage only in regional boundaries (airbnb vs. wimdu/9flats). Probably they would do better overseas if from early on such lists wouldn't be so focused.
Re: If I Launched a Startup - Cheat Sheet
#37Note that while these are probably the best practices for a company that knows it is immediately going to take funding , LLCs and S-Corps are valid choices for companies that aren't sure or that are going to be making money before they take funding. The S-Corp in particular has some attractive features: it simplifies equity grants to employees compared to an LLC, and taxes are easier to deal with in a C-Corp (there's…
Agreed. The primary issue with an S-to-C conversion is that any assets with built-in-gain (i.e., worth more now than when they were acquired) may result in "immediate" income to the corporation. This is not an issue for most startups, unless they start off spending lots of money (i.e., Color). (Also, "immediate" in tax world really just means they'll be part of that year's income.) The conversion itself is otherwise…
Funny, setting up our LLC took about 20 minutes of filling out forms and mailing them in. I've heard it's different state-to-state, but in the state we set up in (Virginia) it was not terribly harder than buying a new cell phone...and less money.
Re: If I Launched a Startup - Cheat Sheet
#38Earlier quoted context omitted.
Maybe. But maybe not. I started my startup in Canada and still incorporated in Delaware. Very glad I did.
I would love to hear more about your experience! I'm interesting in doing a startup in Canada but I'm not sure about the whole legal issues.