TO BE OR NOT TO BE.... A
CORPORATION by David Shulman (PSA Legal
Counsel - 1997 )
A number of skating coaches have sought to operate
businesses other than the teaching of skating to accumulate property and earn
income. During the course of this quest for additional income and a more secure
future, business opportunities may arise which suggest the forming of a
corporation to operate that business.
The leading reason for incorporating any business is to
gain personal protection from the corporate debts. If someone gets hurt on your
business premises or perhaps a deal goes badly, you want to make sure that the
only assets which are in jeopardy belong to the corporation. You don't want to
have your personal estate being attached for the debts of a business which you
operate. If you incorporate your business and properly follow the rules
governing corporations, you may avoid personal liability and attachment of your
personal assets for the business debts. If you fail to follow the rules, a
court can pierce the corporate veil" and hold you and other owners personally
liable for the debts of the corporation business. It is therefore important
that you understand exactly how a corporation is expected to operate and follow
all of the rules for such operation.
Until recently, corporations could only operate for a
limited duration and have a limited allowable purpose. Most legislatures have
now allowed corporations to be formed under a new business structure, the
limited liability company (LLC) which offers liability protection as a
corporation with fewer restrictions. It is relatively easy to begin the
corporate structuring by forming a limited liability company but certain rules
should be followed at the outset.
- Provide enough capital upon the formation of the
business to meet your expected expenses.
- Keep business records separate from personal records.
- Document all transactions between the business and any
of the corporate shareholders - owners.
- File all reports required by your particular state's
secretary of state.
Because legislatures allow corporations to shield their
owners from liability and thus encourage business development, it is important
that the shareholders-owners follow all of the established rules required for
the operation in any particular state. When you are forming your corporation,
make sure that there are enough assets to operate and pay all creditors at the
beginning of the corporate existence. Always keep separate income and expense
sheets for personal expenses versus corporation expenses. Hold annual meetings
to elect officers and directors, even if they are the same people as the
shareholders. Minutes of these meetings must be kept. Nothing is more exciting
than to have an audit by a state taxing authority only to discover that five
years of corporate records need to be constructed in the lawyer's office two
days before the audit is to take place. Not only is this expensive, it is very
dangerous to the corporate existence.
Be sure to file any annual reports with a proper state
agency. Failure to file these reports, and pay any filing fee, could result in
the corporation being dissolved. Make sure major decisions are made by all of
the directors as required under the operational rules of the corporation. One
individual making decisions without consulting the board, when it is required
to do so, could result in a court ordering the dissolution of a corporation
which is a fraud.
Finally, make it clear that the business is operating
under a corporate structure. Always have officers sign contracts and purchase
orders in the corporation's name, never in their own name. Failure to properly
indicate your corporate capacity could result in personal liability for any
business debt to which you have agreed to pay.
Whenever corporate funds are used to pay any of the
owner's personal expenses, it should be authorized by the directors as part of
the owner's compensation package. Always, always treat the corporation as a
separate legal entity. Operating under the rules as suggested may be a nuisance
but it is the price for protection of your personal estate. |