Business Start-Ups: Which Entity is Best

DetroitSkylineI’ve been reading Steven B. Gorin’s massive “book” (he calls the 1053 page PDF a “mere compilation of preliminary ideas”) titled Structuring Ownership of Privately Owned Businesses: Taxation and Estate Planning Implications. I’ve yet to do a deep dive–again, it’s 1053 pages of very dense, complicated reading–but I will. And I will because it’s chock full of crystal clear nuggets like this:

“I freely admit to a bias in favor of partnerships . . . Generally, a business with an uncertain future (as is the case of most start-ups) should start as an LLC taxed as a sole proprietorship or partnership . . . Start-up businesses often lose money initially, and an LLC taxed as a sole proprietorship or partnership facilitate loss deductions better than other entities.” (pp. 76, 78)

Okay, sounds good to me, but what if my plan is to take that start-up public down the road? Gorin might respond (he actually did say this, but not in response to that exact question):

“Suppose that one concludes that a C corporation would be ideal. Starting with an LLC taxed as a partnership and then converting to a C corporation the earlier of five years before a sale is anticipated or shortly before its gross assets reach $50 million might be the most tax-efficient approach.” (p. 78)

So there you have it, the advice of one of the top estate and business planning attorneys in the U.S. on where to begin with your start-up. Of course, every case is different, so don’t take his advice to the bank just yet. Consider all your options, talk with your attorney and a good CPA, but I’m thinking Gorin is probably right.

 

 

Quote for the Day

A lot of wisdom in this quote and just one more reason to consider leaving your children’s inheritance in trust rather than giving it to them outright:

“Those who inherit fortunes are frequently more of a problem than those who made them.”

 Congolese Proverb

File this under “Good to Know”

According to the court in Armstrong v. Armstrong, a 2015 Mississippi case, a paranoid schizophrenic who kills his 80 year-old mother with a crochet-covered brick, repeatedly stabs her, and then bleeds the body to prepare it for burial, might still inherit, since a willful killing under the state’s slayer statute requires not being completely insane. (Courtesy of Steve R. Akers, senior fiduciary counsel at Bessemer Trust)

You Want to Be Successful? Try Massive Action!

Massive_2016-04-18_2108This is a little off topic, so please indulge me.

When I’m not practicing law, I teach writing at Brigham Young University. Today in my Writing & Rhetoric 150 class, my students did what I refer to as Power of Words presentations. These are essentially 7-minute oral presentations about how words have affected the student’s life for good or for bad. The presentations are accompanied by some sort of Power Point or other visual. One student used the white board for his presentation, a talk about what he had learned from his mission president about how to become successful. (For those unfamiliar with Mormon missionary service, young men and women often serve 1 1/2 to 2 years as missionaries far from home, often in foreign lands. Mission presidents and their spouses serve as leaders of those young people. I served a mission long ago in Brazil. My mission president had been a district attorney in Los Angeles before he was asked to serve as my mission president. Three years later, he returned to the DA’s office.)

Now back to my story. My student explained that his mission president wrote the following acronym on a piece of paper: ODOR – PAL.

“ODOR – PAL?” the student wondered.

The mission president continued:

O = Outcome – state what you want to achieve and do it positively.

D = Date – set a date for when you want to achieve that outcome.

O = Obstacles – what stands in your way?

R = Resources – what tools, talents, and friends do you have to help you achieve the outcome?

ODOR is all about the preliminaries, the thinking, the dreaming. Then comes PAL, where all the action takes place:

P = Planning – develop a realistic course of action, map out how you’re going to get to your desired outcome.

A = Massive Action – not just any action, action on a grand scale.

L = Leverage – use what motivates you–money, prestige, honor, whatever–to energize you to carry out your plan.

Now, a lot of this is good old Self-Help 101. I’ve read and heard advice like this a thousand times. But I have to  tell you that as my student continued talking, my mind fixated on the A, the Massive Action. More to the point, the word Massive. Actually, the word stood out even larger. MASSIVE! The white board almost yelled at me.

I consider myself a man of action, but today I realized that my problem is that often, I’m too timid, willing to take a chance but unwilling to risk too much of myself. I realized that when I have been successful, whether in business or in other aspects of my life, it’s almost always been because the adjective MASSIVE made an appearance. I leave it to you to decide what massive means to you. I know what it means to me, and I know where I need to apply it.

 

Quote for the Day

“A trust can be an effective foundation for asset protection planning. Trusts have been utilized for centuries as a means of conserving and protecting property for the beneficiaries of the trust. However, most domestic trusts do not provide protection from creditors. The typical revocable living trust, where the trustors are the lifetime beneficiaries and retain the power to revoke, amend and invade the principal of the trust, provides no protection whatsoever against the creditors of the trustors. Accordingly, absent specific legislation to the contrary, self-created or so-called self-settled trusts are ineffective for asset protection planning purposes.”

“A Primer On Asset Protection Planning,” Jeffrey Matson and Jonathan Mintz, WealthCounsel Quarterly, April 2015

Don’t Put Off Till Tomorrow . . .

lightbulbYesterday I read an interview in the April 2016 issue of WealthCounsel Quarterly with Neel Shah, a business and estate planning attorney in Monroe, New Jersey. The last interview question was of particular interest to me, because occasionally I find myself wondering whether I’m simply selling something when I encourage people to do their estate and business planning, preferably with me. By simply selling I mean selling something they don’t really need. I know better, of course. I’ve seen too many cases where what should have been planned hadn’t been, and people got hurt, loved ones left in a lurch as a consequence.

And I’m not alone, I discovered–yet again. In response to the question, “Can you point to a particular experience that has changed the way you approach your practice?” Shah told the story of a client who had come to him to do some simple will planning. He was young, in the prime of his life. He had some 20 interconnected businesses. They all seemed to be doing well, and the client, Shah says, “looked like he was on top of the world.”

Less than six weeks later, the client was dead–before Shah and he had been able to do much planning. It was then that Shaw discovered that all was not well. The client’s businesses were in hock–for those unfamiliar with the term, they were in debt up to their gills. His personal life wasn’t much better. He had a child from a short-term relationship and other family members he wanted to provide for with his wealth, but in short order his “empire” came crashing down, his dreams for others unfulfilled. As Shaw reports:

“What I saw in that client was the prototypical business owner who simple couldn’t make time to get his planning in order. He had told me that he wanted to provide for his nieces and nephews and he believed–and all evidence supported–that he had many more years ahead of him. His example showed me just how quickly and dramatically things can change.

“By seeing through that client how fragile life can be, now I don’t hesitate to grab a client by the collar and shake them into reality. I also don’t feel like I’m ‘selling’ anything anymore. I feel a lot more like an emergency room physician, telling clients that their business is in dire need of help. After seeing what happens when clients drag their feet, I now have a greater sense of urgency on their behalf. It has made me more passionate in my conversations with clients, and more aggressive in advocating the importance of moving ahead to get good planning in place.”

Somewhere else on this site, I write that the cost of planning is greatly outweighed by the cost of not planning. This story vividly illustrates that point. I could tell more. Want to hear them?

When Dave Ramsey’s Wrong, He’s Really Wrong

Zander_2016-04-15_1200I’ve listened to Dave Ramsey. My wife owns a couple of his books. I get what he does, and I think he probably does a some good–in the debt area, at least. But he’s not always right. For example, I don’t care for some of his opinions about life insurance and much of his investment advice is off the mark as well. Further, his one-size-fits-all approach and his dismissive attitude towards insurance agents and other financial advisors are a real turn off for me. Seems that everybody’s out to get you but Dave and those he recommends. (I have more to say on this point, but I won’t.)

In short, I’m basically not a fan.

So you will not be surprised that I’m posting this link to a blog post by attorney Richard Chamberlain in response to a wildly uniformed excerpt about living/revocable trusts from one of Dave’s books. Make sure to read the entire post and the links in the post.

I must add my two cents on living/revocable trusts: Though they are just one part of a well-executed estate plan, they are an important part. Among many good reasons to establish a living/revocable trust, there’s this: setting one up and funding it will help you and yours get your minds around what you own, how you own it, and how you want it distributed or handled upon your death or incapacity. Mind you, I could add more than two cents to this conversation, but I’ll stop here.

Quote for the (Business) Day

The headquarters of General Motors Corp. stands in Detroit, Michigan, U.S., on Monday, March 30, 2009. U.S. President Barack Obama's administration forced GM Chief Executive Officer Rick Wagoner to resign after concluding the Detroit-based automaker hadn't done enough to prove it can survive amid the worst U.S. auto market in 27 years. Photographer: Jeffrey Sauger/Bloomberg News

Professor, attorney, and author of Business Planning: Closely Held Enterprises, Dwight Drake has some useful advice for would-be entrepreneurs:

“When the entrepreneurial bug bites a group of charged-up business owners, they usually are focused on making the business succeed, maximizing revenues, and minimizing expenses. They have little interest in discussing potential breakups, the risks of the three big “Ds”— death, disability and divorce — and all the other issues that should be addressed in a well-structured buy-sell agreement. A good advisor will help the owners look at the big picture and consider the entire life cycle of the business.

“Business owners need to prepare early for the day when they will part company for whatever reason. At some point down the road, they are each going to want to or have to cash out their equity interest in the business. Somebody is going to leave the business, die, become disabled, or experience a messy divorce. Plus, the owners should acknowledge the simple reality that no matter how good they feel about one another going into the enterprise, tough business decisions may create friction along the way. Friction often leads to a buyout or, worse yet, a legal blowup.

“Potential separation issues are best addressed in a calm, planning-oriented atmosphere, not at the point of crisis. Preferably, the job should be done at the outset of the business when all parties are making important decisions to devote capital and energy to the business enterprise. Encouraging clients to collectively think about the key issues up front often will bring to the surface diverse expectations that may surprise everyone. It usually helps to have these expectations out in the open before irrevocable commitments are made to the venture. Too often, the parties plunge ahead with little regard for the consequences of their inevitable separation down the road.” (emphasis added)

Consider yourself warned. (It’s not a large leap to apply this advice to estate planning as well.)

Are Prenups are for Lovers?

This is another, in a series, of posts that feature articles I wrote for Wealth Manager and other magazines. I actually had a lot of fun writing this one, Broken Vows, Solid Contracts:

For many–if not most–love-struck couples, the words “prenuptial agreement” are anathema, a blanket so wet that it threatens to extinguish their burning love for one another. “Forget that!” they chorus. “We’re in the mood for love!” So, rather than engaging in an important financial discussion before they marry–when they are most likely to treat each other fairly–they wait until the end of their marriage, when they’re least likely to do so. . . .

Enjoy.

Quote for the Day

One of 12 reasons Edwin P. Morrow III, J.D., LL.M. gives for keeping assets in a trust rather than distributing them outright to beneficiaries at death, from his outline, The Optimal Basis Increase and Income Tax Efficiency Trust:

A trust allows the grantor to make certain that the assets are managed and distributed according to his/her wishes, keeping funds “in the family bloodline”. Sure, spouses can agree not to disinherit the first decedent’s family, but it happens all the time – people move away, get sick and get remarried – the more time passes, the more the likelihood of a surviving spouse remarrying or changing his or her testamentary disposition.

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