Question

Following the extensive advice you have provided Mark he has Mark has decided to completely re-evaluate ownership structure of his business. While Mark is still keen to expand his operations, the idea of doing it alone and borrowing the money was not overly attractive and the whole issue of multiple shareholders for his business was a bit overwhelming. Mark really wishes he had been a bit more diligent and prepared weekly work for Financial Accounting 2 so that he would have been allowed to attend tutorials and understand the concepts around shareholders equity better.

As part of his studies Mark recalls he really enjoyed the elective course he undertook called Small Business Accounting. In his discussions with you he has mentioned how it was really interesting and helped him understand how accounting, accountants and small business interact. Unfortunately, Mark originally only choose to study SBA course because it had no exam, but soon found out that like any course he would only be able to do well if he put in the effort. As such, while he did enjoy the content of the course and learned a lot from it, his notes from his studies were less than detailed. One topic he did think was useful but failed to really understand was Partnerships.

Given Mark’s desire to continue his expansion plans he has decided that bringing in a partner or two would be better than issuing extra shares or borrowing money but would like your advice on how to go about this.

Required

Outline for Mark the procedures required for him to establish a Partnership including any legal or documentary steps he may need to take. Also highlight for Mark any potential benefits and concerns he should be aware of when making his decision.

Answer 1

A partnership is a business with several owners who share in the running of the business and in the profits (and losses). We'll look at ways to structure your partnership and how to get ready for Day One in your partnership business.

When you start your partnership, make decisions for the long-term, not just the current situation. Consider how the structure of your partnership might change as the years go by. What kinds of partners might you add? What if the partnership is successful? What if it isn't? How might your partnership tax situation change?

As you make decisions, consider the issues of liability and taxation, both in the short-term and for long-term planning. You will want to limit the liability of partners and pay as little tax as possible (legally, of course). Depending on the type of partnership, some partners may be willing to have more or less liability for their actions as partners.

For tax purposes, the partners are taxed, not the business itself. That is, the partners pay their share of the taxes based on their share of the partnership, through their personal tax returns. There are ways to legally limit taxes paid by partners, depending on how you structure the partnership.

Step One: Make Decisions About Partners

You may be starting your partnership with one or more other owners. There are several decisions you will need to make about the roles, responsibilities, and payments regarding these members.

Partner Contributions. How much does it cost to join this partnership? Usually, when a partnership is formed or a new partner joins, that person contributes a specific amount of money toward the partnership. You will need to decide how much each initial partner must contribute, and how much new partners in the future will contribute.

Partner Types. What types of partners do you want in your partnership? Are all partners the same, or do some have more responsibilities for day-to-day activities than others? In some partnerships, there are general partners, who do the work and make decisions, and there are limited partners, who contribute but who don't make day-to-day decisions.

You may also want to have some partners put in an equity (ownership) share and other partners may be salaried (paid as an employee). These two types of partners are called equity partners and salaried partners.

Partner Shares. What part of the profits does each partner get? Profits of the partnership are divided between partners according to their contributions, seniority, type, or a combination of the above. Take 100 percent and divide it between all partners. The amount due to each partner is called a distributive share.

Of course, partners will share the losses of the partnership in the same percentage. This distribution is only for taxes; the amount each partner takes out of the partnership from this percentage is discretionary.

Step Two: Decide on Partnership Type

Based on the decisions you made in Step One, you should select a partnership type. There are several types to choose from.

• A General partnership has one type of partner, and all participate in the day-to-day decisions and the way their partnership share works is the same.
• A Limited partnership has both general partners and limited partners.
• A Limited liability partnership allows all partners to be shielded from liability for normal partnership activities.

There are several variations of partnership types that may be available in your state. At this point, you should check with your state's business division to see what types of partnerships are available.

Step Three: Decide on a Partnership Name

The type of partnership you have will determine the name of your partnership. For example, if you are starting a limited liability partnership, you would want this designation in your name. Some states have requirements for the name of different types of businesses, so this is the time to do research before you select that name.

A business name is a key piece of information for your business and it's difficult — and costly — to change, so make sure you are firm about your business name before you go on to Step Four. If you aren't going on to Step Four right away, you can just register your partnership name with your state. if you are registering soon, you don't need to register the business name separately.

Step Four: Register Your Partnership With Your State

When you have all the information you need for your partnership, go to your state's Secretary of State website and look for the business or corporations section. Here's where you register your business as a partnership. Most states will allow you to complete this registration online.

If your partnership will be doing business in more than one state, you will need to complete this registration process with each state. The main state is done first as a "domestic" partnership, then register in other states as a "foreign" partnership.

Step Five: Get an Employer ID Number

You can get an employer ID number (EIN) from the IRS after you have the business name and type and location. Almost all businesses need an EIN, even if they don't have employees. The process of getting an EIN is simple, and you can apply for an EIN online or by phone and get the number immediately

Step Six: Create a Partnership Agreement

Don't skip this important step in starting your partnership. A partnership agreement sets out in writing all the processes and decisions that the partners have agreed to. It answers all the "what if" questions that could come up in the life of a partnership. Here's a checklist of what should be included in a partnership agreement, and you can find templates for these agreements online.

Step Seven: Get Other Registrations, Licenses, and Permits

Here's a quick list of some of the other legal and regulatory tasks you'll need to do as you start your partnership:

• Register with your state taxing authority for sales taxes
• Register to pay federal taxes with the EFTPS payment system. This registration applies to paying employment taxes if you have employees.
• You will need to file a fictitious name (sometimes called a DBA for "doing business as") registration with your city or county.
• Finally, depending on what type of partnership you have, you will need to register with your locality to get business licenses and permits. You can use this license and permit checklist to make sure you don't miss any.

Getting Help From an Attorney in Starting a Partnership

Many people ask if they need an attorney to start a partnership. You may not need an attorney to do the registrations with your state and getting the EiN. But, having an attorney help you with the partnership agreement is a definite yes. You may be able to do a first draft and have an attorney look it over. An attorney will help you make sure the agreement complies with your state's laws and will prevent mistakes and missed sections that come back to you later as issues.