Choosing an ownership structure for your business. A guide for business operators in South Australia.

Transcription

1 Choosing an ownership structure for your business A guide for business operators in South Australia

2 Table of Contents 01 Overview How do I choose the appropriate legal structure for my business? Legal forms of ownership Registering a business name Summary Contacts Notes Choosing an ownership structure for your business Page 2 of 22

3 01 Overview One of the early decisions you will face when going into business is what form of legal structure should be adopted. Your choice will involve consideration of many variables and often personal preferences. In most cases, it will boil down to being unincorporated (sole trader or partnership), forming a proprietary company or operating as a trading trust. Each has advantages and disadvantages, so it is important that you make the decision that is right for you in conjunction with your professional advisers. Irrespective of the legal structure adopted, you may also choose to trade under a business name. This guide concludes with a brief summary of registration requirements. Also refer to the Department of State Development guide: Taxing your business Section 05: Taxation and business structures Consult your accountant or lawyer for advice before setting up any business structure. Readers are advised: The purpose of this guide is to provide general introductory information. The guide does not purport to contain all the information that would be relevant to any particular business opportunity. The guide is provided to interested persons on the basis that they will be responsible for making their own assessment of that opportunity with the assistance of the information provided. All figures contained in the guide should be regarded as estimates only based on general samples and may be subject to error. The information in the guide should not be relied upon in substitution for professional advice and individual investigation. Persons interested in pursuing any particular business opportunity are strongly advised to fully inform themselves by taking professional advice as to the extent of their rights and obligations particularly in relation to any proposed investment. The guide is provided subject to the terms of the formal disclaimer, which appears on the last page. Choosing an ownership structure for your business Page 3 of 22

4 02 How do I choose the appropriate legal structure for my business? Choosing an appropriate legal structure will involve consideration of a number of factors, including: Type of business, industry and the level of business risk involved. Ease of operating the business. Limiting your exposure to liability for business debts. Flexibility should your circumstances and objectives change. Size of the business and the number of people involved. Taxation issues. Simplicity and cost effectiveness. Long-term prospects and future plans. Your individual preference. It is important that you obtain professional advice from your solicitor and accountant before you make the decision it may save a lot of heartache in the long run. Choosing an ownership structure for your business Page 4 of 22

5 SOLE PROPRIETORSHIP The owner is the sole proprietor the person who owns and manages a business on their own, either under a business name or their own name. This structure is appropriate where business is small and capital investment is minimal. Advantages You re the boss = total control of business management / operation. Easy to establish. You keep all the profits. Low start-up costs. Simple to operate. No specific laws covering sole proprietors - minimum legal requirements (record-keeping and reporting are required for taxation and legal purposes). Maximum privacy. Easy to change legal structure later if desired. Easy to wind up / sell if desired without requiring the consent of others. Disadvantages Unlimited liability for debts no legal distinction between private and business assets. Limited capacity to raise capital. You need to make all of the day-today decisions about operating the business. Retaining high-calibre employees can be difficult. Taking holidays can be difficult. Life of the business is limited. Taxed as a single person. Business development is limited to the expertise and capabilities of the owner. PARTNERSHIP It is an agreement between two, and up to 20 people, to carry on a business together for profit, with the partners each contributing time, talent and money to the undertaking and sharing the management responsibility. It must be a continuing, not a one-off venture. Partnerships may trade under a business name or under the names of the partners. They are appropriate where the number of persons involved is small and the degree of risk in the venture is such that limited liability is not considered necessary. Choosing an ownership structure for your business Page 5 of 22

6 WHAT IS THE LAW REGARDING PARTNERSHIPS? The Partnership Act defines the rights and obligations of equal partners. The Act sets out the rights and obligations of all parties. When there is a formal agreement, partners may decide upon the distribution of capital and profits. If there is no such agreement then the law states that all partners are equally entitled to share the capital and profits, and must also equally bear responsibility for, and must contribute funds to meet, the losses and debts incurred. Advantages Two heads are better than one. Easy to establish. Low start-up costs. More capital is available for injection into the business. Greater borrowing capacity. High-calibre employees can be made partners. Opportunity for income splitting, an advantage of particular importance due to resultant tax savings. Privacy of partners business affairs. Limited external regulation (Partnership Act 1891). Easy to change legal structure later. A wider pool of expertise is available and it is possible to divide the business operation by specialist roles. Partners can decide on how the control of the business and division of profits is to be shared under formal agreements, which can also provide for future or unforeseeable difficulties. Disadvantages They have a life that lasts only as long as the original partners agree to trade together. Liability of the partners for the debts of the business is unlimited. Each partner is jointly and severally liable for the partnership s debts, that is, each partner is liable for their share of the partnership debts as well as being liable for all the debts. Risk of disagreements and friction among partners and management. Each partner is an agent of the partnership and is liable for actions by other partners. Transfer of ownership is complicated and taking on a new partner requires the consent of all parties. If partners join or leave, you will probably have to value all the partnership assets and this can be costly. Death and bankruptcy dissolves a partnership. If the venture is to continue it must be re-formed. Choosing an ownership structure for your business Page 6 of 22

7 HOW IS A PARTNERSHIP AGREEMENT REACHED? Partnership agreements should ideally be put in writing to reflect the interests of all concerned, and the nature of the business. It is possible to have a verbal or even an implied partnership agreement but they can be problematic. A well thought out agreement will protect all partners and will set out the rules of conduct for future events and how problems will be settled. It will become the set of rules by which the business is to be conducted and should be agreed between all partners before the business is started. An agreement should set out: Names and addresses of the partners. Nature of the business. Duration of the Partnership. Business name. Business address. Capital required for the business. Capital contributions of each partner. Distribution of net profits. Provision for Partnership drawings (income). Authority of partners in making decisions or signing financial and legal documents. The way in which the business is to be conducted and controlled. A mediation process in case of disputes. Procedures to be followed in the event of the: o o o o Bankruptcy, death or retirement of a partner. Admission of a new partner. Dissolution of the Partnership. Sale or closure of the business. HOW DO YOU CHOOSE A PARTNER? You should choose your intended partners very carefully before going into business. To make a wise decision you will need to think about what the person can contribute in terms of capital and expertise. Family and friends do not necessarily make the best partners if they cannot contribute positively to the operation of the business. WHAT DO YOU NEED TO KNOW BEFORE MAKING A PARTNERSHIP DECISION? All people considering entering into a Partnership must be made aware that: Partnerships and partners are viewed by law as the same thing as the business itself. Choosing an ownership structure for your business Page 7 of 22

8 All partners are personally liable for business debts and any obligations and actions arising from business dealings. Undischarged bankrupts and persons of unsound mind cannot enter into a Partnership. Unless otherwise provided for in the agreement: Each partner may take part in the management of the business. Each partner may enter into contracts with third parties. No majority of partners may expel any other partner. A partner cannot sell a personal share of the business unless other partners agree. A partner cannot transfer ownership between partners or a third party without the agreement of the other partners. A new partner can only be brought in if all other partners agree. A partner who retires from the business is still liable for debts incurred before the retirement. New partners are not liable for debts incurred before they entered the business. Death or bankruptcy of a partner will terminate the Partnership. The Partnership has to be re-formed or reconstituted if a partner resigns, dies or retires. Partners may terminate the Partnership at any time by giving due notice of their intentions. The life of the Partnership is limited to the duration of the association of the founding partners. HOW IS TAXATION HANDLED IN A PARTNERSHIP? For a business to be recognised as a Partnership by the Australian Taxation Office (ATO) (website: / Tel: ) it is necessary to show that the partners have real and effective control over the assets, liabilities and profits of the business. A properly drawn up Partnership agreement can assist in establishing this claim. An application for a Partnership Tax File Number is required and an annual taxation return must be filed. The Partnership business is not taxed separately from the partners themselves. Each partner must pay tax on all income, including the share of the Partnership profit. Partners cannot treat income from the business as salary or wages. Partners may have the right to offset Partnership losses against other income. Family members may benefit from a partnership by spreading the income over two or more family members, to minimise the impact of taxation but remember all members must be active partners in the business. Choosing an ownership structure for your business Page 8 of 22

9 WHAT ABOUT CHILDREN IN THE FAMILY BUSINESS? The ATO may view the inclusion of children under the age of eighteen in the family business as an attempt at income-splitting and may impose penalty rates on any income shared with them. If your business is to include your children then you should seek the advice of an accountant or business adviser to avoid unwanted taxation penalty situations. There are also legal considerations regarding the capacity of children to enter into contracts in their own right which are personally binding. If someone under the age of eighteen enters into an ill-considered contract then the results could become binding upon the partnership with no personal liability imposed on the partner who is under 18. Third parties might also be unwilling to enter into agreements with Partnerships that include children. PROPRIETARY COMPANY A proprietary company is set up under a formal legal agreement and gives the company a separate identity (legal entity) from the people who own and manage the business. By law the company is considered to be a person in its own right with the legal and financial obligations that a person might have. It is owed a duty of care by the people who operate the business. The laws governing the setting up of such a company are set out in the Corporations Law, and the financial dealings of the company are monitored through the Australian Securities and Investments Commission (ASIC) (website: / Tel: ). There must be systematic recording of the company s financial transactions. WHO CAN FORM A COMPANY? Companies can be formed by one or more people who must be over the age of 18. People who are undischarged bankrupts or have been convicted of any offences relating to the formation, management or fraudulent operation of any company, are barred from forming a company. People who have committed any breaches of corporate law should see a legal advisor before considering whether to form or enter into a company. There are serious penalties for ignoring these rules. WHAT ARE THE MINIMUM REQUIREMENTS FOR FORMING A COMPANY? A company must have at least one shareholder and it may have more than one director. Shareholders may also be directors and company secretaries. There are residency laws that must be met, with at least one director normally resident in Australia. Choosing an ownership structure for your business Page 9 of 22

10 Advantages Your liability for the company s debts is limited (this protection is often destroyed by creditors, including financiers, calling for guarantees from directors). The personal assets of shareholders are not threatened by company losses or debts except where shareholders are guarantors for the performance of the company. Ease of transferring ownership by selling shares to another party. Shareholders (often family members) can be employed by the company. A company is managed by appointed directors, secretaries and managers all of whom have set responsibilities. Taxation rates are more favourable (consult with your advisers as to whether this provides an overall benefit). Disadvantages Formation of a company requires legal and accounting advice. More complicated and expensive to establish and maintain. Greater regulation by government under the Corporations Act and through ASIC e.g. requirements to provide annual and other returns. Public scrutiny of your financial affairs - Prosecution and fines for failing to comply with the Corporations Law. Scrutiny of directors activities by ASIC. Costly to wind up. Access to a wider capital and skills base. Transfer of company ownership may be a simple process and the company does not have to be wound up upon the disability, death or retirement of anyone of the persons involved. WHAT ARE THE RESPONSIBILITIES OF COMPANY DIRECTORS? The responsibilities are set down in law and it is common for company rules to give set duties to specific individuals. Directors must ensure that all actions of the company are properly recorded, hold an annual general meeting that includes the shareholders, and lodge various forms with ASIC. Choosing an ownership structure for your business Page 10 of 22

11 The directors may also exercise management functions in relation to day-to-day operations such as: Buying or leasing trading premises. Arranging finance. Ordering goods and services. Paying suppliers. Operating service and retail outlets. Keeping financial records. Preparing financial reports and tax returns. WHAT CONDUCT IS EXPECTED OF A DIRECTOR? The law sets down rules of ethical behaviour for directors and expects honesty and a duty of care for the benefit of the company. Dishonest conduct covers more than theft or fraud. It may be that any decision of a director which is not in the overall best interests of the company might be considered dishonest under law. It is wise for directors to make sure that they are fully informed of the possible effect of any decision made before they consent to it. In this way they are protecting themselves and their company. To do this effectively they should: Keep themselves informed of company activities. Take an active part in board meetings. Ask questions about management decisions. Look into any new proposals carefully. Seek outside professional advice in order to make considered judgements on any matter before the board. All information about the company and its dealings should be treated as highly confidential and not used in any way which could damage the company. A director also has a responsibility to ensure that the company does not incur further debts by trading when insolvent. WHAT ARE THE SIGNS OF A COMPANY IN FINANCIAL TROUBLE? If you are considering entering a company or are a director of one you should keep alert for the danger signals. These are: Low operating profits or cash flow. Problems in paying suppliers on time Suppliers refusing to extend further credit. Problems with loan repayments or keeping to over draft limits. Threats of legal action by suppliers and creditors to recover money owed. Choosing an ownership structure for your business Page 11 of 22

12 TRUST Is formed when a business is transferred to a trustee to hold the assets, to run the business, distribute income to beneficiaries and observe the provisions in the trust deed. Often chosen where more than one family is involved in running the business. Advantages Limited liability is possible by appointing a corporate trustee. More privacy than a company. Flexibility in distributions among beneficiaries. Trust income is generally taxed in the hands of individuals. Disadvantages More complex structure. Expensive to establish and maintain. Problems can be encountered when borrowing. Powers of trustee are restricted by the trust deed. CO-OPERATIVES A co-operative may be formed for the provision of goods or services to its members or for the supply of goods or services to the general public. A cooperative is an entity voluntarily owned and controlled by the people for whom it was established and who use its services. There are two types of co-operatives under the Co-operatives Act 1997 (the Act): Trading co-operatives have a share capital and may distribute profits. Non-trading co-operatives do not distribute profits or surpluses to members. They may or may not have share capital. WHO CAN FORM A CO-OPERATIVE? A co-operative is a body corporate. It can be formed by at least five people or two corporations and is registered under the Act. WHAT CAN A CO-OPERATIVE DO FOR ITS MEMBERS? A registered co-operative s functions are included in its rules as activities. Those activities reflect the co-operative s involvement in areas such as primary production, manufacturing, trading, community or social activity. Choosing an ownership structure for your business Page 12 of 22

13 TYPES OF CO-OPERATIVES Co-operatives provide a wide range of social and economic activities, including: Agricultural Retailing Marketing Transport Food Livestock/bloodstock Cultural. WHAT ARE THE ADVANTAGES OF CO-OPERATION? Services The co-operative form of enterprise is specially suited for meeting the collective needs of members, whether they are producers, consumers or workers. Democratic control Each member has an equal say in co-operative matters. That is, one member one vote. Economies of scale A co-operative can mean increased buying/selling power and reduced processing/handling cost. HOW DO CO-OPERATIVES DIFFER FROM OTHER BUSINESS STRUCTURES? Generally, seven principles of co-operation apply to the operation and establishment of co-operatives. These are: 1. Voluntary and Open Membership: open to all willing to accept the responsibilities of membership. 2. Democratic Member Control: active co-operative members each have one vote. 3. Member Economic Participation: ensures that the operations of the cooperative are focused on servicing the members needs. In a trading cooperative, surpluses are normally distributed to members in proportion to business done with the co-operative. 4. Autonomy and Independence: co-operatives are autonomous, self-help organisations controlled by their members. 5. Education, Training and Information: co-operatives provide education and training for their members, elected representatives, managers, and employees so they can contribute effectively to the development of their co-operative. 6. Co-operation between co-operatives: at a local, state, national and international level to enhance the co-operative movement. Choosing an ownership structure for your business Page 13 of 22

14 7. Concern for Community: while focusing on member needs, co-operatives work for the sustainable. CONSUMER AND BUSINESS SERVICES ROLE Consumer and Business Services (CBS) (website: / Tel: ) is the South Australian Government agency responsible for administering the Act. Its functions include: Exercising various discretions under the Act, such as exemptions, registrations and approvals. Maintaining a register of co-operatives and the public file, which includes the registered rules and alterations there to, special resolutions, audited accounts, details of directors and officers, and charges given over assets of the cooperative. Provision of search facilities for people wishing to search and/or obtain copies of available documents. COPIES OF THE CO-OPERATIVES ACT 1997 AND REGULATIONS It is recommended that people considering forming a co-operative obtain a free copy of the Act and Regulations from the South Australian Government Legislation website ( or from Service SA Government Legislation Outlet ( ). INCORPORATION OF AN ASSOCIATION Incorporation is a simple and inexpensive means of establishing a legal entity. It is an alternative to forming, for example, a company limited by guarantee or a cooperative, and is particularly suitable for small, community-based groups. Except as may be provided in the rules of the association, incorporation provides a limited liability for members. An association that has trading or profit-making as its purpose is not able to incorporate under the Associations Incorporation Act INCORPORATED ASSOCIATIONS: Have their own corporate identity. Can sue and be sued. Can enter into contracts. Mostly appoint committees to run affairs. Documents lodged are kept on a public register. It is recommended if you are considering forming a co-operative you obtain a free copy of the Act and Regulations from the South Australian Government Legislation website ( or from Service SA Government Legislation Outlet ( Choosing an ownership structure for your business Page 14 of 22

15 Please Note: If you do not have a set of rules (constitution) you may be able to obtain assistance from a similar organisation already incorporated under the Act. Section 23A of the Act deals with the minimum contents of rules. FORMS If you are applying for Incorporation of an Association you will need to submit both Form 1 (Application for Incorporation) and Form 2 (Statutory Declaration to accompany Application for Incorporation). You download them from the Consumer and Business Services (CBS) website: HOW TO INCORPORATE Making an Application for Incorporation - Three easy steps: Step 1 - Meeting of Members 1. Authorise a person to make the application for incorporation. The role of this person is to complete and sign the necessary forms and to lodge them with CBS. 2. Obtain the consent of the person who will be the association s first public officer. (A separate pamphlet outlining the role of a public officer is available from CBS). The person who consents to be the first public officer can also be the person authorised to make the application if that is what the meeting wishes. 3. Approve the name of the association. The name selected should reflect the association s nature, objects and purposes. If there is a problem with the name selected the matter will be taken up with the lodging party. Approve the rules. The proposed rules should be considered as to whether they will cater for the activities of the particular association and comply with section 23A of the Act. Step 2 - Complete the Forms 1. Forms 1 and 2 need to be completed. Every item must be completed. The name of the association must appear exactly the same on both forms and as it appears in the names clause of the rules. 2. Item 3 of Form 1 seeks information about the purpose for which the association is being formed. A wide range of not-for-profit associations including sporting and religious bodies are eligible for incorporation. Section 18 of the Act sets out the eligibility criteria. 3. Form 2 must be signed and declared before a Justice of the Peace. The endorsement set out at the foot of the form must be written or typed on the copy of the rules and then signed by a Justice of the Peace. 4. The rules must be clearly printed or typed on single sheets of A4 size white paper. Choosing an ownership structure for your business Page 15 of 22

16 Step 3 - Lodge Forms & Rules 1. The fee payable is set out on Form 1. It may alter in July each year. 2. Check that the forms are fully completed and that the other matters discussed in Step 2 have been met. The proposed rules and checklist of proposed rules must accompany Forms 1 and if the documents are deficient they will be returned to the lodging party. 3. Normally you can expect to receive the Certificate of Incorporation in about 14 days. 4. The name of the association must be used on all documents and correspondence and on its common seal exactly as it appears on the Certificate of Incorporation, except that Incorporated can be abbreviated as Inc. 5. You can obtain a common seal from a rubber stamp maker listed in the Yellow Pages. (This is used when entering into agreements). LEGAL ADVICE AND ASSISTANCE Some associations may wish to consider obtaining legal advice. A legal advisor will be able to assist in preparing rules and completing the forms and if you have doubt as to whether you can determine your organisation s income tax status or other tax obligations he or she will be able to provide you with advice on those issues. There may also be Goods and Services Tax (GST) obligations for an incorporated association and advice on this should be sought. If it is likely that, in the first or subsequent years of operation of the incorporated association, the gross receipts of the association exceed $200,000, special provisions apply to account and audits. You should seek advice. SUMMARY Obtain a copy of the Associations Incorporation Act 1985 and Regulations plus an example set of rules. At a meeting of members authorise a person to make the application for incorporation and appoint a public officer. Obtain Form 1 and Form 2 and a Checklist of Rules. Lodge the completed and signed forms along with a copy of your set of rules and checklist of rules at Consumer and Business Services (CBS) (website: / Tel: ). Lodgement fees are payable. You may wish to consider insurance. Choosing an ownership structure for your business Page 16 of 22

17 04 Registering a business name Any business entity can choose to trade under a business name. In South Australia, every business name must be registered under the Business Names Act The choice of name is entirely up to you, but the name chosen must not be misleading or offensive, be already registered, or be a name that is likely to be confused with a name already registered. Who must register? In broad terms, the Act requires that unless you carry on business under your own name (or joint names of yourself and partners), the name of the business must be registered. Registration is not required where the business name consists of the surname(s) of the person(s) conducting the business, with first names or initials or a combination of these, provided there is no addition of any other word or words. A business name is important because it can help to create an image for your business, be easily remembered by customers and potential customers, tell the marketplace what the business is all about, give the business respectability and highlight points of difference over other businesses. Business names are administered throughout Australia by the Australian Securities and Investment Commission (ASIC) (website: / Tel: ). Your decision on an appropriate business name should be made carefully. Like most things in business, it is best to approach the task in a systematic manner by establishing a simple set of criteria to help you decide whether or not a proposed name is appropriate. Your checklist could look like this: CHECKPOINT Y N NOTES Is the name easy to read? Is it easy to remember? Does the name lend itself to visual media? Is it easy to say? Does it roll off the tongue when answering the telephone? Does the name convey to potential customers the scope and nature of your business? Choosing an ownership structure for your business Page 17 of 22

18 04 Registering a business name CHECKPOINT CONTINUED Y N NOTES Is it likely to be durable through changing climates of opinion? Does it portray a symbol of quality, service and reliability? Is the name likely to be too restrictive (e.g. geographic names tying the business to a particular region) if services or the direction of the business change at a later date? Choosing an ownership structure for your business Page 18 of 22

19 05 Summary 1 2 Choice of business structure should be made after consideration of many variables, including business risk, management issues, the impact of taxation, continuity of the business entity, influence of the law, establishment and ongoing costs and personal factors relating to individual owners. Make your decision on choice of business structure after seeking professional advice. 3 Review your business structure regularly as the business grows and legislative changes occur. There is no one right business structure; your choice will depend on your particular circumstances. 4 If you wish to trade under a name other than your own and that of any co-proprietor, it is required by law that the name be registered. Choosing an ownership structure for your business Page 19 of 22

20 06 Contacts Australian Securities & Investments Commission (ASIC) / Tel: Australia s corporate, markets and financial services regulator. Register your company or business name. Australian Taxation Office (ATO) / Tel: Provides taxation information and offers a Small Business Assistance Program for Australian businesses. Consumer and Business Services (CBS) / Tel: Assists small businesses with consumer affairs, business and occupational services, tenancies (including lease and landlord issues), education and information services. Service SA Government Legislation Outlet South Australian Government Legislation website Choosing an ownership structure for your business Page 20 of 22

21 07 Notes Choosing an ownership structure for your business Page 21 of 22

22 Department of State Development GPO Box 320 Adelaide SA 5001 T: E: DSDSmallBusinessStrategy@sa.gov.au W: DISCLAIMER The Government of South Australia gives no warranty and makes no representation, whether express or implied, as to the accuracy of information contained within this guide or the suitability of the information for any purpose. Any use of the information contained in this guide (whether authorised or not) is at the users sole risk and the Government of South Australia disclaims responsibility for any loss or damage incurred as a result of such use. The information is provided solely on the basis that users of the information will make their own assessment of the accuracy of the information and users are advised to verify all information contained within this document. Any information about the law in Australia or South Australia is provided as general information only and is not legal advice. This guide is a starting point only and is not a substitute for legal or professional advice. While the Department has attempted to ensure the information is accurate at the time of publishing, no responsibility will be accepted for any errors or omissions and the Government of South Australia will not be liable for any loss or damage incurred by any person as a consequence of any use, reference or reliance on this information. Any such use, reference or reliance shall be at the sole risk of that person who should seek their own legal and/or professional advice if required. COPYRIGHT Produced by the South Australian Government March 2015 Choosing an ownership structure for your business Page 22 of 22