Legal Guide for Starting & Running a Small Business ppt

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Legal Guide
for Starting
& Running a
Small Business
by Attorney Fred S. Steingold
edited by Ilona Bray
Seventh edition
iv
SEVENTH EDITION FEBRUARY 2003
Editor ILONA BRAY
Illustration MARI STEIN
Book Design TERRI HEARSH
Cover Design TONI IHARA

Production SARAH HINMAN
Proofreading ROBERT WELLS
Index JEAN MANN
Printing ARVATO SERVICES, INC.
Steingold, Fred.
Legal guide for starting & running a small business / by Fred S. Steingold — 7th ed.
p. cm.
Includes index.
ISBN 0-87337-910-1
1. Small business—Law and legislation—United States—Popular works. 2. Business
enterprises—Law and legislation—United States—Popular works. I. Title: Legal guide for
starting and running a small business II. Title
KF1659.Z9S76 2003
346.73’0652—dc21
2002045235
Copyright © 1992, 1995, 1997, 1998, 1999, 2001 and 2003 by Fred Steingold
All rights reserved. Printed in U.S.A.
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v
ACKNOWLEDGMENTS
Special thanks to Nolo Publisher Jake Warner—the cheerful perfectionist whose ideas infuse every page
of this book—and to Nolo Editor Mary Randolph, who deftly whipped the early manuscripts into final
shape.
Thanks, too, to the rest of the remarkable Nolo family for their invaluable contributions—especially
Steve Elias, Robin Leonard, Barbara Hodovan, Jackie Mancuso, Tony Mancuso, Barbara Kate Repa,

Beth Laurence and Ilona Bray.
In addition to the folks at Nolo, these other professionals generously shared their expertise to make this
book possible:
• Attorneys Charles Borgsdorf, Larry Ferguson, Sandra Hazlett, Peter Long, Michael Malley,
Robert Stevenson, Nancy Welber and Warren Widmayer.
• Certified Public Accountants Mark Hartley and Lonnie Loy.
• Insurance Specialists James Libs, Mike Mansel and Dave Tiedgen.
Finally, thanks to my small business clients, who are a constant source of knowledge and inspiration.
vi
INTRODUCTION
CHAPTER 1
Which Legal Form Is Best for Your Business?
A. Sole Proprietorships 1/4
B. Partnerships 1/7
C. Corporations 1/11
D. Limited Liability Companies 1/21
E. Choosing Between a Corporation and an LLC 1/23
F. Special Structures for Special Situations 1/26
CHAPTER 2
Structuring a Partnership Agreement
A. Why You Need a Written Agreement 2/2
B. An Overview of Your Partnership Agreement 2/3
C. Changes in Your Partnership 2/13
CHAPTER 3
Creating a Corporation
A. The Structure of a Corporation 3/2
B. Financing Your Corporation 3/5
C. Compensating Yourself 3/6
D. Do You Need a Lawyer to Incorporate? 3/7
E. Overview of Incorporation Procedures 3/8

Table of Contents
vii
F. Twelve Basic Steps to Incorporate 3/8
G. After You Incorporate 3/17
H. Safe Business Practices for Your Corporation 3/17
CHAPTER 4
Creating a Limited Liability Company
A. Number of Members Required 4/2
B. Management of an LLC 4/3
C. Financing an LLC 4/3
D. Compensating Members 4/5
E. Choosing a Name 4/6
F. Paperwork for Setting Up an LLC 4/7
G. After You Form Your LLC 4/11
H. Safe Business Practices for Your LLC 4/13
CHAPTER 5
Developing a Buy-Sell Agreement
A. Major Benefits of Adopting a Buy-Sell Agreement 5/3
B. Where to Put Your Buy-Sell Provisions 5/7
C. When to Create a Buy-Sell Agreement 5/8
CHAPTER 6
Naming Your Business and Products
A. Business Names: An Overview 6/4
B. Mandatory Name Procedures 6/7
C. Trademarks and Service Marks 6/10
D. Strong and Weak Trademarks 6/11
viii
E. How to Protect Your Trademark 6/12
F. Name Searches 6/13
CHAPTER 7

Licenses and Permits
A. Federal Registrations and Licenses 7/3
B. State Requirements 7/4
C. Regional Requirements 7/6
D. Local Requirements 7/7
E. How to Deal With Local Building and Zoning Officials 7/9
CHAPTER 8
Tax Basics for the Small Business
A. Employer Identification Number 8/2
B. Becoming an S Corporation 8/6
C. Business Taxes in General 8/7
D. Business Deductions 8/14
E. Tax Audits 8/19
CHAPTER 9
Raising Money for Your Business
A. Two Types of Outside Financing 9/3
B. Thirteen Common Sources of Money 9/8
C. Document All Money You Receive 9/15
ix
CHAPTER 10
Buying a Business
A. Finding a Business to Buy 10/2
B. What’s the Structure of the Business You Want to Buy? 10/3
C. Gathering Information AboutaBusiness 10/7
D. Valuing the Business 10/8
E. Other Items to Investigate 10/11
F. Letter of Intent to Purchase 10/13
G. The Sales Agreement 10/15
H. The Closing 10/24
I. Selling a Business 10/24

CHAPTER 11
Franchises: How Not to Get Burned
A. What Is a Franchise? 11/2
B. The Downsides of Franchise Ownership 11/3
C. Investigating a Franchise 11/7
D. The Uniform Franchise Offering Circular 11/8
E. The Franchise Agreement 11/14
F. Resolving Disputes With Your Franchisor 11/18
CHAPTER 12
Insuring Your Business
A. Working With an Insurance Agent 12/2
B. Property Coverage 12/4
C. Liability Insurance 12/8
D. Other Insurance to Consider 12/12
E. Saving Money on Insurance 12/14
F. Making a Claim 12/17
x
CHAPTER 13
Negotiating a Favorable Lease
A. Finding a Place 13/2
B. Leases and Rental Agreements: An Overview 13/2
C. Short-Term Leases (Month-to-Month Rentals) 13/3
D. Written Long-Term Leases 13/4
E. Additional Clauses to Consider 13/16
F. Shopping Center Leases 13/17
G. How to Modify a Lease 13/18
H. Landlord-Tenant Disputes 13/18
I. Getting Out of a Lease 13/20
J. When You Need Professional Help 13/21
CHAPTER 14

Home-Based Business
A. Zoning Laws 14/2
B. Private Land Use Restrictions 14/7
C. Insurance 14/8
D. Deducting Expenses for Business Use of Your Home 14/10
CHAPTER 15
Employees and Independent Contractors
A. Hiring Employees 15/2
B. Job Descriptions 15/5
C. Job Advertisements 15/6
D. Job Applications 15/6
E. Interviews 15/10
F. Testing 15/10
xi
G. Investigating Job Application Information 15/20
H. Immigration Law Requirements 15/22
I. Personnel Practices 15/22
J. Illegal Discrimination 15/23
K. Wages and Hours 15/26
L. Occupational Safety and Health 15/29
M. Workers’ Compensation 15/30
N. Termination 15/31
O. Unemployment Compensation 15/33
P. Independent Contractors 15/34
CHAPTER 16
The Importance of Excellent Customer Relations
A. Developing Your Customer Satisfaction Policy 16/3
B. Telling Customers About Your Policies 16/5
CHAPTER 17
Legal Requirements for Dealing With Customers

A. Advertising 17/2
B. Retail Pricing and Return Practices 17/5
C. Warranties 17/9
D. Consumer Protection Statutes 17/15
E. Dealing With Customers Online 17/16
CHAPTER 18
Cash, Credit Cards and Checks
A. Cash 18/2
B. Credit Cards 18/2
C. Checks 18/3
xii
CHAPTER 19
Extending Credit and Getting Paid
A. The Practical Side of Extending Credit 19/2
B. Laws That Regulate Consumer Credit 19/8
C. Becoming a Secured Creditor 19/9
D. Collection Problems 19/10
E. Collection Options 19/14
CHAPTER 20
Put It in Writing: Small Business Contracts
A. What Makes a Valid Contract 20/2
B. Unfair or Illegal Contracts 20/4
C. Misrepresentation, Duress or Mistake 20/5
D. Must a Contract Be in Writing? 20/6
E. Writing Business-to-Business Contracts 20/9
F. The Formalities of Getting a Contract Signed 20/13
G. Enforcing Contracts in Court 20/17
H. What Can You Sue For? 20/18
CHAPTER 21
The Financially Troubled Business

A. Thinking Ahead to Protect Your Personal Assets 21/2
B. Managing the Financially Troubled Business 21/5
C. Seeking an Objective Analysis 21/8
D. Workouts 21/10
E. Selling or Closing the Business 21/13
F. Understanding Bankruptcy 21/15
xiii
CHAPTER 22
Resolving Legal Disputes
A. Negotiating a Settlement 22/2
B. Understanding Mediation 22/3
C. Arbitration 22/5
D. Going to Court 22/8
CHAPTER 23
Representing Yourself in Small Claims Court
A. Deciding Whether to Represent Yourself 23/2
B. Learning the Rules 23/4
C. Meeting the Jurisdictional Limits 23/4
D. Before You File Your Lawsuit 23/6
E. Figuring Out Whom to Sue 23/8
F. Handling Your Small Claims Court Lawsuit 23/8
G. Representing Yourself If You’re the Defendant 23/11
H. Appealing Small Claims Decisions 23/12
I. Collecting Your Judgment 23/12
CHAPTER 24
Lawyers and Legal Research
A. How to Find the Right Lawyer 24/3
B. Fees and Bills 24/5
C. Problems With Your Lawyer 24/6
D. Do-It-Yourself Legal Research 24/7

xiv
APPENDIX A
APPENDIX B
INDEX
The law increasingly affects every aspect of a small business operation, from relationships with
landlords, customers and suppliers to dealings with governmental agencies over taxes, licenses
and zoning. Being surrounded by legal issues places most small business owners in an unhappy
dilemma—either buy expensive legal help from a lawyer or go without.
Here is another alternative: a self-help book designed to answer most of the legal questions
you’re likely to ask in starting and running your business.
Fortunately, understanding and coping with most small business legal issues isn’t akin to do-
ing your own brain surgery. In truth, it’s more like taking an aspirin when you feel a headache
coming on.
No self-help law book, no matter how good, can eliminate the need to consult an attorney
once in a while. But armed with the practical legal information you’ll find here, you’ll be able to
make most day-to-day decisions on your own, seeking professional advice only when you truly
need it.
If you understand basic legal issues, you can avoid basic legal problems. But staying out of
trouble shouldn’t be your only goal. Whether you’re a retailer, professional, craftsperson, dis-
tributor or small manufacturer, a good understanding of the law can help you fashion policies
and strategies that will pay off.
For example, suppose you want to lease a building. Typically, you’ll have two worries. If
you sign a long lease and your business doesn’t succeed, you’ll be stuck with an unneeded
space. On the other hand, if you choose a very short lease and your business is the big hit you
hope it will be, the landlord may jack up the rent.
Fortunately for the legally knowledgeable, there is an easy detour around this dilemma. It’s
called the lease option contract. Typically, for a small payment or a slightly increased rent, you
can start with a short lease that gives you one, or even several, options to renew at an agreed-
upon rental amount (often, the original rent plus an adjustment for inflation) if your business
does well.

Dealing with customers is much the same. If you know the law that regulates advertising,
refunds and warranties, you have a strong basis to establish policies that tell your customers you
really do put their interests first. Seen this way, legal rules do not define how you’ll treat cus-
tomers. Instead, they form the foundation on which you build a more generous relationship,
which will convert one-time customers into regulars and regular customers into advocates for
your business.
Finally, a personal note. I’m a small business lawyer and legal writer based in Ann Arbor,
Michigan. I advise many people with dreams and aspirations much like yours. Much of what I
tell them day to day is in this book.
There is one thing I’d like to emphasize right here at the beginning. You’re about to take
charge of your legal decision-making in an exciting new way. In fact, you’ll begin to look at law
differently—not as an enemy to be feared but as a fact of business life that you can grasp and
be comfortable with. In business, as elsewhere, knowledge is power, and this book helps you
put the power of law in your hands.
Introduction
INTRODUCTION/2 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
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Recommended Forms
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Legal Forms for Starting & Running a Small Busi-
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gal forms and checklists. ■
CHAPTER
1
Which Legal Form Is Best for Your Business?
A. Sole Proprietorships 1/4
B. Partnerships 1/7
C. Corporations 1/11
D. Limited Liability Companies 1/21
E. Choosing Between a Corporation and an LLC 1/23
F. Special Structures for Special Situations 1/26
1/2 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
W
hen you start a business, you must decide
on a legal structure for it. Usually you’ll
choose either a sole proprietorship, a part-
nership, a limited liability company (LLC) or a cor-
poration. There’s no right or wrong choice that fits
everyone. Your job is to understand how each legal
structure works and then pick the one that best
meets your needs. The best choice isn’t always obvi-

ous. After reading this chapter, you may decide to
seek some guidance from a lawyer or an accountant.
For many small businesses, the best initial choice
is either a sole proprietorship or—if more than one
owner is involved—a partnership. Either of these
structures makes especially good sense in a busi-
ness where personal liability isn’t a big worry—for
example, a small service business in which you are
unlikely to be sued and for which you won’t be
borrowing much money. Sole proprietorships and
partnerships are relatively simple and inexpensive
to establish and maintain.
Forming an LLC or a corporation is more compli-
cated and costly, but it’s worth it for some small busi-
nesses. The main feature of LLCs and corporations
that attracts small businesses is the limit they provide
on their owners’ personal liability for business debts
and court judgments against the business. Another
factor might be income taxes: You can set up an LLC
or a corporation in a way that lets you enjoy more
favorable tax rates. In certain circumstances, your
business may be able to stash away earnings at a
relatively low tax rate. In addition, an LLC or corpo-
ration may be able to provide a range of fringe ben-
efits to employees (including the owners) and deduct
the cost as a business expense.
Given the choice between creating an LLC or a
corporation, many small business owners will gener-
ally be better off going the LLC route. For one thing,
if your business will have several owners, the LLC

can be more flexible than a corporation in the way
you can parcel out profits and management duties.
Also, setting up and maintaining an LLC can be a bit
less complicated and expensive than a corporation.
But there may be times a corporation will be more
beneficial. For example, because a corporation—un-
like other types of business entities—issues stock
certificates to its owners, a corporation can be an
ideal vehicle if you want to bring in outside investors
or reward loyal employees with stock options.
Keep in mind that your initial choice of a busi-
ness form doesn’t have to be permanent. You can
start out as sole proprietorship or partnership and,
later, if your business grows or the risks of personal
liability increase, you can convert your business to
an LLC or a corporation.
For some small business owners, a less
common type of business structure may
be appropriate.
While most small businesses will
find at least one good choice among the four basic
business formats described above, a handful will
have special situations in which a different format is
required or at least is desirable. For example, a pair
of dentists looking to limit their personal liability
may need to set up a professional corporation (PC)
or a professional limited liability company (PLLC). A
group of real estate investors may find that a limited
partnership is the best vehicle for them. These and
other special types of business organizations are

summarized in Section F at the end of this chapter.
You may need professional advice in
choosing the best entity for your business.
This chapter gives you a great deal of information to
assist you in deciding how to best organize your
business. Obviously, however, it’s impossible to cover
every nuance of tax and business law that applies to
your business. This is especially so if your business
has several owners with different and complex tax
situations. And keep in mind that especially for busi-
nesses owned by several people who have different
personal tax situations, sorting out the effects of
“pass-through” taxation (where partners and most
LLC members are taxed on their personal tax returns
for their share of business profits and losses) is no
picnic, even for seasoned tax pros. The bottom line is
that unless your business will start small and have a
very simple ownership structure, before you make
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/3
TYPE OF ENTITY
Sole Proprietorship
(Section A)
General Partnership
(Section B)
Limited Partnership
(Section F)
Regular Corporation
(Section C)
S Corporation
(Section C)

Professional Corporation
(Section F)
Nonprofit Corporation
(Section F)
Limited Liability Company
(Section D)
Professional Limited
Liability Company
(Section F)
Limited Liability
Partnership
(Section F)
MAIN ADVANTAGES
Simple and inexpensive to create and operate
Owner reports profit or loss on his or her
personal tax return
Simple and inexpensive to create and operate
Owners (partners) report their share of profit
or loss on their personal tax returns
Limited partners have limited personal liability
for business debts as long as they don’t participate
in management
General partners can raise cash without involving
outside investors in management of business
Owners have limited personal liability for
business debts
Fringe benefits can be deducted as business expense
Owners can split corporate profit among owners
and corporation, paying lower overall tax rate
Owners have limited personal liability for

business debts
Owners report their share of corporate profit
or loss on their personal tax returns
Owners can use corporate loss to offset income
from other sources
Owners have no personal liability for malpractice
of other owners
Corporation doesn’t pay income taxes
Contributions to charitable corporation are
tax-deductible
Fringe benefits can be deducted as business expense
Owners have limited personal liability for business
debts even if they participate in management
Profit and loss can be allocated differently than
ownership interests
IRS rules now allow LLCs to choose between being
taxed as partnership or corporation
Same advantages as a regular limited liability company
Gives state licensed professionals a way to enjoy those
advantages
Mostly of interest to partners in old-line professions
such as law, medicine and accounting
Owners (partners) aren’t personally liable for the
malpractice of other partners
Owners report their share of profit or loss on their
personal tax returns
MAIN DRAWBACKS
Owner personally liable for business debts
Owners (partners) personally liable for business debts
General partners personally liable for business debts

More expensive to create than general partnership
Suitable mainly for companies that invest in real estate
More expensive to create than partnership or sole proprietorship
Paperwork can seem burdensome to some owners
Separate taxable entity
More expensive to create than partnership or sole proprietorship
More paperwork than for a limited liability company, which offers
similar advantages
Income must be allocated to owners according to their
ownership interests
Fringe benefits limited for owners who own more than
2% of shares
More expensive to create than partnership or sole proprietorship
Paperwork can seem burdensome to some owners
All owners must belong to the same profession
Full tax advantages available only to groups organized for
charitable, scientific, educational, literary or religious purposes
Property transferred to corporation stays there; if corporation
ends, property must go to another nonprofit
More expensive to create than partnership or sole propietorship
State laws for creating LLCs may not reflect latest federal
tax changes
Same as for a regular limited liability company
Members must all belong to the same profession
Unlike a limited liability company or a professional limited
liability company, owners (partners) remain personally liable
for many types of obligations owed to business creditors,
lenders and landlords
Not available in all states
Often limited to a short list of professions

WAYS TO ORGANIZE YOUR BUSINESS
1/4 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
your final decision on a business entity, you’ll want
to check with a tax advisor after learning about the
basic attributes of each type of business structure
from this chapter and Chapters 2, 3 and 4.
A. Sole Proprietorships
The simplest form of business entity is the sole pro-
prietorship. If you choose this legal structure, then
legally speaking you and the business are the same.
You can continue operating as a sole proprietor as
long as you’re the only owner of the business.
Establishing a sole proprietorship is cheap and
relatively uncomplicated. While you do not have to
file articles of incorporation or organization (as you
would with a corporation or an LLC), you may have
to obtain a business license to do business under
state laws or local ordinances. States differ on the
amount of licensing required. In California, for ex-
ample, almost all businesses need a business li-
cense, which is available to anyone for a small fee.
In other states, business licenses are the exception
rather than the rule. But most states do require a
sales tax license or permit for all retail businesses.
Dealing with these routine licensing requirements
generally involves little time or expense. However,
many specialized businesses—such as an asbestos
removal service or a restaurant that serves liquor—
require additional licenses which may be harder to
qualify for. (See Chapter 7 for more on this subject.)

In addition, if you’re going to conduct your busi-
ness under a trade name such as Smith Furniture
Store rather than John Smith, you’ll have to file an
assumed name or fictitious name certificate at a lo-
cal or state public office. This is so people who deal
with your business will know who the real owner
is. (See Chapter 6 for more on business names.)
From an income tax standpoint, a sole propri-
etorship and its owner are treated as a single entity.
Business income and business losses are reported
on your own federal tax return (Form 1040, Sched-
ule C). If you have a business loss, you may be able
to use it to offset income that you receive from
other sources. (For more tax basics, see Chapter 8.)
Legal Forms for Starting & Running a Small
Business contains a checklist for starting a
sole proprietorship.
1. Personal Liability
A potential disadvantage of doing business as a sole
proprietor is that you have unlimited personal liabil-
ity on all business debts and court judgments re-
lated to your business.
EXAMPLE 1: Lester is the sole proprietor of a
small manufacturing business. When business
prospects look good, he orders $50,000 worth
of supplies and uses them up. Unfortunately,
there’s a sudden drop in demand for his prod-
ucts, and Lester can’t sell the items he’s pro-
duced. When the company that sold Lester the
supplies demands payment, he can’t pay the

bill.
As sole proprietor, Lester is personally li-
able for this business obligation. This means
that the creditor can sue him and go after not
only Lester’s business assets, but his other prop-
erty as well. This can include his house, his car
and his personal bank account.
EXAMPLE 2: Shirley is the sole proprietor of a
flower shop. One day Roger, one of Shirley’s
employees, is delivering flowers using a truck
owned by the business. Roger strikes and seri-
ously injures a pedestrian. The injured pedes-
trian sues Roger, claiming that he drove care-
lessly and caused the accident. The lawsuit
names Shirley as a co-defendant. After a trial,
the jury returns a large verdict against Roger—
and Shirley as owner of the business. Shirley is
personally liable to the injured pedestrian. This
means the pedestrian can go after all of
Shirley’s assets, business and personal.
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/5
One of the major reasons to form a corporation
or a limited liability company (LLC) is that, in theory
at least, you’ll avoid most personal liability. (But see
Chapter 12, Section C, for a discussion of how a
good liability insurance policy may be enough pro-
tection against personal liability for a sole propri-
etor.)
2. Income Taxes
As a sole proprietor, you and your business are one

entity for income tax purposes. The profits of your
business are taxed to you in the year that the busi-
ness makes them, whether or not you remove the
money from the business (called “flow-through”
taxation, because the profits “flow through” to the
owner’s income tax return). You report business
profits on Schedule C of Form 1040.
By contrast, if you form an LLC or a corporation,
you have a choice of two different types of tax
treatment.
• Flow-Through Taxation. One choice is to
have the IRS tax your LLC or corporation like
a sole proprietorship or partnership (dis-
cussed above). The owners report their share
of LLC or corporate profits on their own tax
returns, whether or not the money has been
distributed to them.
• Entity Taxation. The other choice is to make
the business a separate entity for income tax
purposes. If you form an LLC and make that
choice, the LLC will pay its own taxes on the
profits of the LLC. And as a member of the
LLC, you won’t pay tax on the money earned
by the LLC until you receive payments as
compensation for services or as dividends.
Similarly, if you form a corporation and
choose this option, you as a shareholder
won’t pay tax on the money earned by the
corporation until you receive payments as
compensation for services or as dividends.

The corporation will pay its own taxes on the
corporate profits.
In Sections C and D of this chapter, I’ll explain
the mechanics of choosing between these two
methods. For now, just be aware that this tax flex-
ibility of LLCs and corporations offers some tax ad-
vantages over a sole proprietorship if you’re able to
leave some income in the business as “retained
earnings.” For example, suppose you want to build
up a reserve to buy new equipment or your small
label manufacturing company accumulates valuable
inventory as it expands. In either case, you might
want to leave $50,000 of profits or assets in the
business at the end of the year. If you operated as a
sole proprietor, those “retained” profits would be
taxed on your personal income tax return at your
marginal tax rate. But with an LLC or corporation
that’s taxed as a separate entity, the tax rate will al-
most certainly be lower.
You can share ownership of your
business with your spouse and still main-
tain its status as a sole proprietorship.
If you
choose to do this, in the eyes of the IRS you’ll be co-
sole proprietors. You can either split the profits from
your business if you and your spouse file separate
returns (and separate Schedule Cs), or you can put
them on your joint Schedule C if you file a joint re-
turn. Only a spouse can be a co-sole proprietor. If
any other family member shares ownership with

you, the business must be organized as a partner-
ship, corporation or limited liability company.
3. Fringe Benefits
If you operate your business as a sole proprietor-
ship, tax-sheltered retirement programs are available.
A Keogh plan, for example, allows a sole proprietor
to salt away a substantial amount of income free of
current taxes. You can’t really do any better by set-
ting up an LLC or a corporation.
A regular (“C”) corporation or an LLC that
chooses to be taxed as a separate entity does have
an advantage when it comes to medical expenses
for the owner and his or her spouse and depen-
1/6 LEGAL GUIDE FOR STARTING & RUNNING A SMALL BUSINESS
dents. As a sole proprietor, you are limited as to
how much you can deduct for medical expenses on
your personal tax return: You can deduct only the
amount that exceeds 7.5% of your adjusted gross
income for the year. If you form an LLC or a corpo-
ration, however, and choose to have it taxed as a
separate entity, you can have your business pay all
of your family’s medical expenses (so long as
they’re not covered by insurance) and then take
these amounts as a business deduction. You won’t
be personally taxed for the value of this employ-
ment benefit.
In the past, sole proprietors could deduct only a
portion of health insurance premiums for them-
selves and family members, while LLCs and corpo-
rations (if separate taxable entities) could deduct

100%. That sometimes provided a reason to form an
LLC or corporation, but no longer. A self-employed
person can now deduct 100% of those premiums.
If you form an LLC or a corporation, however,
and choose to have it taxed as a separate entity, you
can have the business hire you as an employee. The
business can pay 100% of your family’s health insur-
ance premiums and uncovered medical expenses
and then take these amounts as a business deduc-
tion; you won’t be personally taxed for the value of
this employment benefit.
Hiring Your Spouse
Can Have Tax Benefits
If you choose to do business as a sole propri-
etor, there’s a way you can deduct more of
your family’s medical expenses. First, hire your
spouse at a reasonable wage. Then, set up a
written health benefit plan covering your em-
ployees and their families. A sample form is
shown below. Your business can then deduct
100% of the medical expenses it pays.
But balance whether such a plan can save
you enough money to justify the effort. There
may be some expense for setting up the plan
and handling the associated paperwork. And
remember that your business will be obligated
for payroll taxes on your spouse’s earnings.
(See Chapter 8, Section C, for information on
payroll taxes.) But this isn’t all bad, since your
spouse will become eligible for Social Security

benefits in his or her own right, which can be
of some value—especially if he or she hasn’t
already worked long enough to qualify.
If you’re audited, the IRS will look closely
to make sure your spouse is really an em-
ployee and performing needed services for the
business.
To learn about how a person qualifies for
Social Security benefits, see Social Security,
Medicare & Government Pensions, by Joseph L.
Matthews (Nolo).
WHICH LEGAL FORM IS BEST FOR YOUR BUSINESS? 1/7
Sample Reimbursement Plan
Sam Jones, a sole proprietor doing business as
Jones Consulting Services (the Company), es-
tablishes this Health and Accident Plan for the
benefit of the Company’s employees.
1. Coverage. Beginning January 1, 20XX, the
Company will reimburse each employee
for expenses incurred by the employee for
the medical care of the employee and the
employee’s spouse and dependents, and
for premiums for medical, dental and dis-
ability insurance. The medical care cov-
ered by this plan is defined in Section
213(d) of the Internal Revenue Code. De-
pendents are defined in Section 152.
2. Direct Payment. The Company may, in its
discretion, pay any or all of the expenses
directly instead of reimbursing the employee.

3. Expense Documents. Before reimbursing
an employee or paying an expense di-
rectly, the Company may require the em-
ployee to submit bills and insurance pre-
mium notices.
4. Other Insurance. The Company will reim-
burse an employee or pay bills directly
only if the reimbursement or payment is
not provided for under any other health
and accident or wage continuation plan.
5. Ending or Changing the Plan. Although the
Company intends to maintain this plan in-
definitely, the Company may end or change
the plan at any time. This will not, how-
ever, affect an employee’s right to claim re-
imbursement for expenses that arose before
the plan was ended or changed.
Dated: December __, 20XX
____________________________________
Sam Jones, doing business as Jones
Consulting Services
4. Routine Business Expenses
As a sole proprietor, you can deduct day-to-day
business expenses the same way an LLC, corpora-
tion or partnership can. Whether it’s car expenses,
meals, travel or entertainment, the same rules apply
to all of these types of business entities.
You’ll need to keep accurate books for your busi-
ness that are clearly separate from your records of
personal expenditures. The IRS has strict rules for

tax-deductible business expenses (covered in Chap-
ter 8, Section D), and you need to be able to docu-
ment those expenses if challenged. One good ap-
proach is to keep separate checkbooks for your busi-
ness and personal expenses—and pay for all of your
business expenses out of the business checking ac-
count. But whatever your system, please pay atten-
tion to this basic advice: It’s simple to keep track of
business income and expenses if you keep them
separate from the start—and murder if you don’t.
B. Partnerships
If two or more people are going to own and oper-
ate your business, you must choose between estab-
lishing a partnership, a corporation or a limited li-
ability company (LLC). This section looks at the
general partnership, which is the type of partner-
ship that most small businesses will be considering.
The limited partnership is described in Section F1,
below.