Are you thinking of starting your own business? Great, now the question is what form of business ownership to choose. It is important to choose the right form of business
Essentially there are four forms of business ownership in Canada:
- Sole Proprietorship
- Corporation – Federal or Provincial
Each type of ownership formation has its advantages and disadvantages, we will give a brief summary for each type of business set up. Please contact us and we will be happy to work with you to select the best set-up for your needs.
Please be advised that MMS Accounting & Bookkeeping Services is an accounting firm, WE ARE NOT LAWYERS and CANNOT GIVE LEGAL ADVICE. The information provided are intended to be used as a general guide only, for further assistance or legal information, please consult your lawyer.
With this type of business organization, you would be fully responsible for all debts and obligations related to your business and all profits would be yours alone to keep. As a sole owner of the business, a creditor can make a claim against your personal or business assets to pay off any debt.
- easy and inexpensive to form a sole proprietorship (you will only need to register your business name provincially, except in Newfoundland and Labrador);
- relatively low cost to start your business
- lowest amount of regulatory burden
- direct control of decision making
- minimal working capital required to start-up
- tax advantages if your business is not doing well, for example, deducting your losses from your personal income, lower tax bracket when profits are low, and so on
- all profits will go to you directly
- unlimited liability (if you have business debts, personal assets would be used to pay off the debt)
- income would be taxable at your personal rate and, if your business is profitable, this may put you in a higher tax bracket
- lack of continuity for your business, if you need to be absent
- difficulty raising capital on your own
A partnership would be a good business structure, if you want to carry on a business with a partner and you do not wish to incorporate your business. With a partnership, you would combine your financial resources with your partner into the business. You can establish the terms of your business with your partner and protect yourself in case of a disagreement or dissolution by drawing up a specific business agreement. As a partner, you would share in the profits of your business according to the terms of your agreement.
You may also be interested in a limited liability partnership (LLP) in the business. This means that you would not take part in the control or management of the business, but would be liable for debts to a specified extent only.
When establishing a partnership, you should have a partnership agreement drawn up with the assistance of a lawyer, to ensure that:
- you are protecting your interests
- that you have clearly established the terms of the partnership with regards to issues like profit sharing, dissolving the partnership, and more
- that you meet the legal requirements for a limited partnership (if applicable)
- easy to start-up a partnership
- start-up costs would be shared equally with you and your partner
- equal share in the management, profits and assets
- tax advantage, if income from the partnership is low or loses money (you and your partner include your share of the partnership in your individual tax return)
- similar to sole proprietorship, as there is no legal difference between you and your business
- unlimited liability (if you have business debts, personal assets would be used to pay off the debt)
- hard to find a suitable partner
- possible development of conflict between you and your partner
- you are held financially responsible for business decisions made by your partner (for example, contracts that are broken)
Incorporation is a process by which a corporation is formed. A corporation is defined as a business venture comprising an individual, or group of individuals, treated by the law as an individual.
Benefits of Incorporating:
Separate Legal Entity
The act of incorporating creates a legal entity called a corporation, commonly referred to as a “company.” A corporation has the same rights and obligations under Canadian law as a natural person. Among other things, this means it can acquire assets, go into debt, enter into contracts, sue or be sued, and even be found guilty of committing a crime. A corporation’s money and other assets belong to the corporation and not to its shareholders.
When a business is incorporated, its separate legal status, property, rights and liabilities continue to exist until the corporation is dissolved, even if one or more shareholders or directors sell their shares, die or leave the corporation.
The act of incorporation limits the liability of a corporation’s shareholders. This means that, as a general rule, the shareholders of a corporation are not responsible for its debts. If the corporation goes bankrupt, a shareholder will not lose more than his or her investment (unless the shareholder has provided personal guarantees for the corporation’s debts). Creditors also cannot sue shareholders for liabilities (debts) incurred by the corporation, even though shareholders are owners of the corporation. Note, however, that if a shareholder has another relationship with the corporation —; for example, as a director —; then he or she may, in certain circumstances, be liable for the debts of the corporation.
The Canada Business Corporations Act (CBCA) places a number of obligations and responsibilities on directors. For example, it says that directors can be held liable for certain acts or failures to act. Chapter 7 of this guide Organizing Your Corporation: The Directors, contains further information on the role of directors.
Lower Corporate Tax Rates
Because corporations are taxed separately from their owners, and the corporate tax rate is generally lower than the individual tax rate, incorporation may offer you some fiscal advantages. However, we strongly suggest that you ask a lawyer or accountant to help you assess whether incorporating might save you money.
Greater Access to Capital
It is often easier for corporations to raise money than it is for other forms of business. For example, while corporations have the option of issuing bonds or share certificates to investors, other types of businesses must rely solely on their own money and loans for capital. This can limit the ability of a business to expand.
Corporations are also often able to borrow money at lower rates than those paid by other types of businesses, simply because financial institutions and other sources of financing tend to see loans to corporations as less risky than those given to other forms of enterprise.
While a partnership or sole proprietorship ceases to exist upon the death of its owner(s), a corporation continues to live on even if every shareholder and director were to die. This is because, in the case of a corporation, ownership of the business would simply transfer to the shareholders’ heirs.
This assurance of continuous existence gives a corporation greater stability. This, in turn, allows the corporation to plan over a longer term, thereby helping it obtain more favourable financing.
Implications of Incorporating:
Higher Start-Up Costs
If you decide to incorporate your business, you will have higher start-up costs than if you carry on the business as a sole proprietorship or partnership. Some of these costs are directly related to the process of setting up the corporation, while others can include professional fees paid for legal and accounting services. Although there is no requirement to obtain legal advice to incorporate, we encourage you to do so, especially if you are considering setting up a company with a complex share structure.
All federally incorporated businesses must file certain documents with Corporations Canada. Among these are:
- Articles of Incorporation;
- an Annual Return; and
- notices of any changes in the board of directors and/or the address of the registered office.
A federally incorporated business must also:
- maintain certain specified corporate records;
- file corporate income tax returns; and
- register in any province or territory where it carries on business.
More complex structure
Because a corporation is a separate legal entity that has no physical form, its activities must be carried out by individuals who have an interest in the corporation and are entitled to act on its behalf. These individuals can be divided into three categories:
- Shareholders —; These are the people who own the corporation. They make decisions by voting and passing resolutions generally at a shareholders’ meeting. Most importantly, they elect the directors of the corporation.
- Directors —; They supervise the management of the corporation’s business. A corporation must have at least one director. They are also responsible for appointing the corporation’s officers.
- Officers —; A corporation’s officers hold positions such as president, chief executive officer, secretary and chief financial officer. Although a corporation’s officers are appointed by the directors, their duties are normally set out in the by-laws. In general, officers are responsible for managing and executing the corporation’s day-to-day business.
An individual may hold more than one of these positions in a corporation. For example, the same individual may be a shareholder, a director and an officer, or even the sole shareholder, sole director and sole officer.
Federal or Provincial?
To decide whether to incorporate federally or provincially you should ask yourself the following questions:
- Where will the corporation carry on business? In one or more provinces, or across Canada?
- Is federal name protection important for the business? Will the corporate name be used in other provinces or territories?
- Is the corporate name unique to justify protecting it with federal incorporation?
- Will you decide to incorporate additional companies in the future? If so, it is generally recommended to incorporate these new companies in the same jurisdiction as the first corporation, so that future corporate changes can be made cheaply and easily
- Owned and controlled by its members
- Democratic control (one member, one vote)
- Limited liability Profit distribution
- Longer decision-making process
- Participation of all members is required in order to succeed
- Extensive record keeping
- Less incentive to invest additional capital