Legal Services – Page 7 – AmeriLawyer – Incorporate, Trademark & Asset Protection

Are You Taking The Leap Into Franchising?

January 7, 2016 Spiegel & Utrera, P.A.

There are more than 3,000 franchises in the United States; the vast majority are unknown to the average consumer. Many entrepreneurs consider buying a franchise due to brand recognition and access to turn-key operations. However, there may be many pitfalls to becoming a franchise that many entrepreneurs fail to consider before entering into a franchise agreement. The following are some key issues to consider before taking the leap into franchising:

Is it a good business opportunity? Even if you are buying a franchise, you need a business plan. Franchisors often provide information that can be inserted into your plan, but you should not rely on the franchisor. You need to analyze your own market and consider enlisting professional help.
Who is the franchisor? Entrepreneurs should ask questions related to the business model, the uniqueness of the product or service, competitors, long-term value, marketing support provided, royalties and franchise fees, and hidden costs such as rents and annual meeting requirements.
What do other franchisees say? You should consider talking to past and current franchisees to discuss their experiences.
What does it cost? Federal law and most states require that you receive a franchise disclosure document and franchise agreement that discusses all fees and costs, past performance, and other relevant financial and legal information. Review of these documents should not be taken lightly, and it is highly suggested to have an experienced franchise law attorney review the documents.

If you are a member of Spiegel & Utrera, P.A.’s General Counsel Club and have more questions about franchising, call (800) 734-9900 or clubassist@amerilawyer.com for assistance. Remember, as a member of the General Counsel Club, you receive unlimited legal, business, credit and tax advice all year long.

Which Entity Does NOT Pay Federal Taxes?

January 5, 2016 Spiegel & Utrera, P.A.

When the time comes to hand the IRS your money, it’s no secret that the byzantine tax code they have created is built for confusion over efficiency. Here are some things every entrepreneur should know about filing taxes for an LLC:

First, unlike a Corporation, an LLC is a pass-through entity – this means that the company itself will not have to pay any federal taxes at the company level. The individual members will pay taxes or any distributions they receive from the LLC. If the LLC has only one member, you will be taxed like a sole proprietorship. This means that you will figure your profits and losses on IRS Form 1040, Schedule C when you file your personal income tax return.

However, if your LLC has multiple members, you will be taxed as a partnership. Each member will report their profits on IRS Form 1040, Schedule E when they file their personal tax return. The partner’s share of profits and losses should be clearly defined on a well-drafted Operating Agreement in order to avoid conflict. In addition, the multi-member LLC must distribute a Schedule K-1 to each member in order to show that member his or her share of LLC income.

Always check with your State’s tax collector for any “franchise taxes.” These are additional state taxes imposed on LLC’s that reach a certain income threshold.

If you are a member of Spiegel & Utrera, P.A.’s General Counsel Club and you need assistance filing your LLC taxes, call (800) 734-9900 or clubassist@amerilawyer.com for assistance. Remember, as a member of the General Counsel Club, you receive unlimited legal, business, credit and tax advice all year long.

Be Careful With Your Self Directed IRA Or Else

November 18, 2015 Spiegel & Utrera, P.A.

Self-directed IRA’S are commonly used vehicles for investing IRA funds into assets without having to immediately pay taxes on the funds used for investments. These IRA-owned LLC‘s operate out of a business checking account with the “Manager” of the LLC (also the IRA account holder) being the authorized signer on the account. If the account holder is not extremely careful, the self-directed IRA may create major tax and legal problems. Specifically, tax-exempt status may no longer be afforded to the IRA and the entire value of the IRA may be treated as taxable to the account holder, including possible interest and penalties.

Ensuring that the account holder does not engage in, what the IRS considers, “prohibited transactions” is key to avoiding these potential issues. Generally, the self directed IRA shall not interact, or transact matters, with “disqualified persons.” Disqualified persons include, but are not limited to, the IRA account holder; the account holder’s spouse; lineal descendants, lineal ascendants, and spouses of these persons; and, business entities owned 50% or more by these people. It is important to note that any direct or indirect interaction, and even minor transactions, between the IRA and a disqualified person may result in the complete taxation of the IRA.

Visit our website for more information and to make sure your interests are protected!

Email: info@Amerilawyer.com

Misclassifying Workers Can Lead to Costly Penalties

November 5, 2015 Spiegel & Utrera, P.A.

Avoiding payroll taxes by intentionally or unintentionally misclassifying employees as independent contractors is a costly mistake.

Most often the misclassification will be discovered during an audit or if a former worker files a complaint. Under “the twenty factor test” in Revenue Ruling 87-41, an employee is anyone who performs services for an employer if the employer can control what will be done and how it will be done. However, in an independent contractor relationship the employer has the right to control or direct only the result of the work done, and not the means and methods of accomplishing the result.

How to properly create an independent contractor relationship?

Foremost, you must have an independent contractor agreement in place. This will help define the responsibilities of the indepependent contractor to follow proper standards under the law. Next, the independent contractor should set up his own corporation or LLC. Then the independent contractor relationship is between two entities. This helps the employer prove he is not controlling methods to accomplish the result. To help understand how to create an independent contractor relationship, speak to one of our specialists at (800) 603 – 3900 or visit our website today!

Franchising: A Simpler Path If You Can Avoid The Pitfalls

October 29, 2015 Spiegel & Utrera, P.A.

The recent recession and subsequent slow recovery have steered more entrepreneurs towards franchises.

The boom in franchises means more opportunity, but not all buyers are getting an accurate picture before taking the plunge. Because there is no central regulation over franchising, disclosure statements are often used to confuse buyers into more restrictive terms. For example, franchisers are getting kickbacks for these arrangements. Furthermore, franchisees can only go to arbitration. In some cases the franchise agreements will shorten the statute of limitations meaning the franchisee cannot bring any legal action.

Despite the risks, franchising is a proven business model

Before you enter into a franchise agreement, it must be reviewed by an attorney familiar with the franchise industry. Also, buyers must have thorough due diligence done to determine whether the franchise can be successful. Buying a franchise is one of the largest investments you will ever make, so it shouldn’t be take lightly. If you already own a franchise, or you are thinking of purchasing one, then contact the Spiegel & Utrera, P.A. General Counsel Club at (800) 743-9900.

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Two Ways To Raise Money For Your Business You May Not have Considered

October 28, 2015 Spiegel & Utrera, P.A.

When starting a business, among the most common methods that are thought of to raise money for the business are a business loan from a bank, credit cards, money from savings or a second mortgage on a home. The 2 ways listed below are some that may not have been considered.

Crowdfunding. In a crowdfunding situation, you would present the idea for your business on a crowdfunding website. The public would then decide if they would like to contribute to your business by providing money. Typically crowdfunding sites allow for people who donate to a business to receive a “reward” for investing. Kickstarter and Fundable are among the more popular crowdfunding websites.
Business Partner. Many companies receive money for their business from a business partner. Choosing a business partner is something that should be done with great care to ensure that the business partner’s goals are in sync with yours. It is also important to have all the proper agreements drafted such as a buy out agreement and operating agreement in place when the business is getting started. Having the agreements in place prior to any disagreements could pay off greatly down the line.

If you are a member of Spiegel & Utrera, P.A.’s General Counsel Club and have business related questions, call (800) 734-9900 or clubassist@amerilawyer.com for assistance. Remember, as a member of the General Counsel Club, you receive unlimited legal, business, credit and tax advice all year long.

Spiegel & Utrera, P.A. is a corporate law firm with its main offices located in Miami, Florida with offices throughout the United States. As a law firm, we do more than just help you form your business entity. We stand ready to help with the maintenance of your legal business entity! We will assist you with Incorporation Service, Trademarks, Copyrights, Estate Planning, Legal Counsel, Wills,Trusts, Agreements & Leases, Corporate & Company

Seven Powerful Reasons to Incorporate or Organize an LLC

October 21, 2015 Spiegel & Utrera, P.A.

1. Protect yourself from personal liability

Corporation or LLC signs lease – you’re not personally liable
Corporation or LLC borrows money – you’re not personally liable
Corporation or LLC buys goods and services on credit – you’re not personally liable

2. Business Tax Deductions

According to Judge Learned Hand, “any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one’s taxes. Gregory v. Helvering, 69 F.2d 809 (2nd Cir., 1934).” Furthermore, the Supreme Court stated that “[t]he legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” Gregory v. Helvering, 293 U.S. 465 (1935).

Entrepreneurs will want to attribute as much of their expenses as possible to reasonable and necessary business expenses. Why pay more taxes than necessary? Many taxpayers overlook legitimate deductions for business expenses. To the extent possible, entrepreneurs will want to ensure to deduct the following business expenses:

Vehicle expenses are deductible if they are attributable to a business use. An individual taxpayer cannot claim a corporate expense, it is an expense of the corporation. Automobile lease payments are deductible if they are ordinary and necessary expenses of a trade or business directly attributable to the operation of a trade or business.
Travel expenses are deductible to the extent they are reasonable and necessary expenses incurred in the conduct of a trade or business directly attributable to the trade or business. Townsend Industries, Inc. v. U.S., 342 F.3d 890 (8th Cir. 2003). Thus, a corporation could hold an annual meeting for its shareholders and directors in a distant city.
Start-up and organizational costs, at the taxpayer’s election, may be treated as deferred expenses and allowed as deductions prorated equally over a period of not less than 60 months, beginning with the month in which the active trade or business, corporation, or partnership begins.
Certain types of entertainment expenses may be deducted, such as food and beverages provided for employees on the business premises, recreational expenses for employees, expenses of certain business meetings, and items sold or made available to the public.
Attorneys’ fees, court costs, and other legal and accounting expenses may qualify as ordinary and necessary trade or business expenses.
Rent for the use of property to which the corporation has no title and in which the corporation has no equity can be deducted as a trade or business expense if the rent is paid in connection with the corporation’s trade or business, is ordinary and necessary, and is paid or incurred during the taxable year. If the property on which the rent is paid is used for both business and personal purposes, only the portion allocable to business use is deductible. If the corporation leases office space at the residence of an officer or director, for the rent to be deductible the office space must be exclusively used for business purposes on a regular basis and be the principal place of business of the corporation.
Expenditures for incidental repairs, maintenance, replacement, and improvements may be deducted as ordinary and necessary business expenses.
The cost of materials and supplies used in a corporation’s trade or business generally is a deductible business expense.
Interest and other borrowing charges incurred in the course of a trade or business are deductible.
In general, state local and sales taxes that are ordinary and necessary corporation expenses paid or incurred in carrying on the trade or business are deductible.
Salaries and other compensation for personal services actually rendered may be deducted as an ordinary and necessary trade or business expense. To be deductible, compensation payments must be reasonable and must be actually paid as compensation (rather than as dividends).
The cost of insurance may be deducted as a business expense if the insurance is connected with the corporation’s trade, business, or profession
Advertising costs related to a corporation’s business generally are deductible as an ordinary and necessary business expense.
A rebate of a portion of the purchase price to a customer generally is deductible as a business expense.
Payments to charitable organizations that bear a direct relationship to the corporation’s business and that are made with the reasonable expectation of a financial return commensurate with the amount of the donation may be deductible as business expenses. For example, a retail store might set aside a percentage of its sales for donation to local charities as part of a promotional campaign and thus be entitled to a business deduction for the donations.
Setting up a reserve account can create a legitimate tax deduction. Midas Muffler warrants its muffler for as long as the purchaser owns the vehicle on which the muffler has been installed. If the muffler fails to perform properly during the warranty period, Midas will install a new, warranted muffler on the vehicle, and the muffler owner will not be charged for the muffler, only for the labor required to install. You may be interested to know Midas Inc. (the muffler company) recorded $38.5 million in charges to reflect its estimated liability associated with outstanding warranties in the U.S. and Canada. On a going forward basis, Midas will accrue for the expected future cost of warranty redemptions at the time of the original installation of the warranted part. See Midas Inc.’s 10-K here. What does this mean? Midas is claiming such warranty reserves as a business deduction! Other entrepreneurs are bound to take note and offer long-term warranties for their products and claim a business deduction.

3. Minimize IRS Audits

Sole proprietors must file an IRS Form 1040, Schedule C (Profit or Loss from a Business). Unfortunately, the IRS audits sole proprietors that file the form at a higher audit rate than returns for an incorporated micro business. Also, sole proprietors with home office deductions face even more risk of audit by filing the IRS Form 8829 (Expenses for Business Use of Your Home) for home office deductions. S or C corporations avoid such scrutiny. See Shelter Your Small Business from Tax Audits.

4. Privacy

The Corporation or LLC can be established in such a way so that shareholder/owners remain anonymous, many times the same anonymity can be accomplished for officers and directors.

5. Use of a Marketing framework

Hold the business out to all as a Corporation or LLC
Give the business the appearance of being much bigger than it is
Attract investors more easily

6. Raising capital

Because of the ease of transfer of ownership and the “separate entity” concept of the Corporation or LLC, it is much easier to attract investors than otherwise.

7. Easy transfer of ownership

Put real estate in Corporation or LLC and transfer through private agreement, i.e. stock transfer rather than formal real estate transfer and closing.
Re-title asset to a Corporation or LLC yet continue to maintain control.

Raising Money For Your Business Using The Internet

September 22, 2015 Spiegel & Utrera, P.A.

Crowdfunding is a new and evolving method to raise money for businesses using the Internet. It serves as an alternative source of capital to support a wide range of ideas and ventures. An entity or individual raising funds through crowdfunding typically seeks small individual contributions from a large number of people.

In 2012, Congress enacted the Jumpstart Our Business Startups Act (the “JOBS Act”). The Jobs Act makes it easier for an entrepreneur or company to find investors and raise capital. By easing various securities regulations, it encourages small business funding. The Securities and Exchange Commission (SEC) has promulgated Rules under Title II (Access to Capital for Job Creators) removing the prohibition on general solicitation or general advertising for securities offerings relying on Rule 506 (considered a “Safe Harbor” for the private offering exemption of Section 4(a)(2) of the securities Act of 1993) provided that sales are limited to accredited investors and an issuer takes reasonable steps to verify that all purchasers of the securities are accredited investors. The SEC is expected to finalize its November 5, 2013 proposed Title III (Crowdfunding) Rule this October. Until that Rule is finalized and promulgated, nationwide general solicitation is illegal.

A growing list of states is also allowing the general solicitation of in-state investors through crowdfunding internet platforms. Governor Rick Scott of Florida is expected to sign the Florida Intrastate Crowd Finance Act amending the Florida-based entrepreneurs, small business owners, and others can use web-based crowdfunding platforms as intermediaries for their intrastate funding campaigns. This law amends Florida’s securities transactions law. A Florida entrepreneur or business person will no longer be limited to soliciting financing support from Florida “accredited” or high-net-worth individuals.

Due to the strict requirements and limitations of state and federal laws, advice counsel is necessary for businesses to assure full compliance before crowdfunding activities commence on the internet.

To better understand how crowdfunding can help your business, speak to one of our attorneys by calling 800-743-9900 or visit our website today!

www.AmeriLawyer.com

Avoid Becoming Personally Liable For Business Employment Or Payroll Taxes

September 15, 2015 Spiegel & Utrera, P.A.

Many business owners have a false sense of protection from liability of business debts and taxes based on general rule of law that the corporate or LLC form of organization shields persons from personal liability. However, this is not the case when it comes to paying employment payroll taxes. Employers are required to withhold federal income taxes and social security (FICA) taxes from their employee wages and are liable for payment of these taxes to the IRS. The employer does not have to segregate withheld funds from other funds available. However, these funds are considered to be held in trust and cannot be spent for any purpose other than remittance to the government.

Failure to Withhold and Pay Employment Payroll Taxes

To facilitate the collection of unpaid trust fund taxes, persons statutorily responsible for making sure the taxes are paid are held personally liable. The IRS will seek a 100% penalty against certain individuals considered to be “responsible parties” for the payment of trust fund unpaid withholding taxes. The penalty does not apply to the employer’s portion of FICA and to federal unemployment taxes.

Who Is A Responsible Party?

In many situations it is difficult, based solely on the tax code, to determine who is the responsible person. The ultimate determination of responsible persons is often decided by the courts, which have taken a broad view. Courts have repeatedly stated the penalty should be imposed on persons who have ultimate authority to decide the priority of bill payment and who willfully pay other creditors, rather than paying the payroll taxes. For a small business, this may include signers on the corporate bank account(s), any of the officers, directors, and shareholders or members of the company.

Call us or visit our website today to learn more about Avoid Becoming Personally Liable For Business Employment Or Payroll Taxes!

800-743-9900

www.AmeriLawyer.com

Selling Your Existing Business

September 10, 2015 Spiegel & Utrera, P.A.

How much is it worth? If you are thinking of selling your existing business, the first question you will ask yourself is; “How much is it worth?”

Unfortunately there is not only one method to value a business, there are many different approaches, and in addition there are also many variables to take into consideration. It is very likely that two people looking at the same business will come up with two different values.

There are a few methods however that are commonly used.

1. Value your business based on sales
Some industries tend to value the business based on the annual sales and use a multiplier. This method is commonly used in service industries; the multiplier will be different depending on the industry and a few factors individual factors. For example, one industry’s multiplier may be 2 times the annual sales, which would be the price you would ask for your business.

2. Value your business based on cash flow or profits
In this method the value of the company is based on the company’s estimated ability to generate profit or cash flow over a period of five years used with an agreed upon multiplier. As you can see, there may be vastly different opinions about the accuracy of the future projections but a profitable, healthy small business should sell for somewhere between 2.5 to 4.5. For example, if the annual cash flow in your business is $50,000 the selling price should be somewhere between $125,000 and $225,000.

3. Value your business based on assets
What if there is no cash flow or profits? Sometimes business owners cannot wait for the ideal point in time to sell the business, but they are forced to sell. In this case the method of valuing the assets may be a way to go. While it may be easy to value tangible assets such as machinery or vehicles, don’t forget that the business phone number, domain name or an existing lease in an attractive area may also be valuable assets.

To better understand how to sell your business, speak to one of our attorneys by calling 800-743-9900 or visit our website today!

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