by eclewis | Jul 22, 2013 | Business News, Online/Social Media Law
The Marketplace Fairness Act was passed by the U.S. Senate on May 6th and is currently pending vote in the House of Representatives. The MFA would enable state governments to tax online retailers generating $1 million or more in a fiscal year.
The Marketplace Fairness Act is not a federal sales tax but a uniform framework for state governments to enforce their own sales tax laws on interstate exchanges. If the bill is passed in the House of Representives and enacted by President Obama, who has already indicated support for the legislation, states will have to follow basic rules as outlined by Rick Burgess if they do not join the Streamlined Sales and Use Tax Agreement:
- Notify retailers in advance of any rate changes.
- Designate a single state organization to handle sales tax registrations, filings, and audits.
- Establish a uniform sales tax base.
- Establish a way that a retailer can pay sales tax at a different state’s rate for sellers in that state.
- Provide free software for managing sales tax compliance
- Hold retailers harmless for any errors that result from relying on state-provided systems and data
The bill has rallied supporters and opponents alike. Among the supporters are state and local governments who can expect increased tax revenue as well as The National Retail Federation -the worlds largest retail trade association. The NRF has urged Congress to pass and implement the MFA. In a letter distributed to members of the Senate, NRF Senior Vice-President, David French states:
“As the retail industry evolves and digital commerce becomes a more prominent portion of total retail sales, it is critical that the tax laws not discriminate between businesses based on how their products are distributed…The Marketplace Fairness Act addresses the crisis by removing the constitutional limitations on states’ authority to collect sales tax from out-of-state sellers.”
Ardent opponent of the MFA Terri Alpert, a well-respected CEO in Connecticut who has built two top-shelf brands that generate more than $14 million in sales every year sat down with Forbes magazine to discuss why she is against the bill. The most vocal proponents claim that the MFA is an attempt to level the playing field between brick-and-mortar stores and online retailers but in reality it is: “a way to consolidate sales and power in the hands of the biggest retailers and to crush the little guys with an administrative burden that no small or even medium-size company can handle” according to Alpert.
In regards to the $1 million dollar revenue cutoff exemption Alpert adds that “for most people, that sounds like a pretty large business. But retailers work on very small net margins, often 5% or lower. So the typical $1 million seller may have one part-time employee and may be earning about $50,000 a year!”
The Marketplace Fairness Act may have more difficulty passing through the Republican majority of Congress than it encountered in the Senate. For now, only time will tell how the Marketplace Fairness Act will play out. In the event that you have any questions about the pending legislation or any legal business matters, contact your Denver business attorney Elizabeth Lewis at 720-258-6647 .
by eclewis | Jan 29, 2013 | Business News
The past few weeks we have been talking about starting a business. Just like starting a business with a spouse which we discussed two weeks ago, people start to think about going into business with friends and family. You’ve known your brother since you were kids – you have fought with him, beside him, and for him. What better partner in crime for a business than the same kid that teased you about going to school in hot pink or got your first boyfriend? In some cases, family owned businesses can be great. In others they can cause a family split like no other.
When you first start thinking about going into business with a family member, like going into business with a spouse or partner, you need to seriously evaluate your family member’s strengths and weaknesses. Is the family member a good fit for the business you are starting? Are you bringing the family member into the business because of what he can contribute? Or are you bringing the family member into the business for other reasons such as the family member doesn’t have a job and you want to help him? Even though you and the family member were raised with similar values, do you still have those similar values? For instance, do you have the same financial values? Do you both have the ability to be self-employed (and therefore probably little to no income) while the business is in the startup stage? Finally, and maybe most importantly, because it is a family member, are you going to be able to handle disputes without causing a strain in your relationship with the family member?
When working with family members, a dispute in the business can go very, very, very wrong. While a dispute with non-related partners can also go wrong, when there is a dispute in a family owned business it can mean not only the downfall of the business, but a break in the family bonds. Recently, the story of the Pasquini family in Denver has made the news. The Pasquini case has pitted brother against sister in a dispute over the family business, specifically the rights to the name of the business. As this Denver Post article highlights, the case has now evolved into a multimillion dollar dispute that will probably leave the family with bitter feelings forever. Prior to going into business with a family member, you have to consider all the possibilities to make sure that the potential costs are really worth it.
With these caveats in mind, proceeding with a family business is similar to proceeding with any business with partners. The family members need to seek legal help from a business attorney to determine what type of business entity they should open, what documents are necessary to open the business, and to help with legal issues as they come up. The family members may also need to seek the help of an estate planning attorney to ensure that should something happen to one of them, the estate plans are clearly recorded to lessen any feuding between descendants later on.
Finally, just like with all businesses, the family business should add several other members to its advisory team. In addition to the business lawyer, a CPA, insurance agent, and banker are essential members to make the business successful. These key players will help protect the family business’ finances and assets to ensure that the business can be successful for many generations to come.
If you have any questions about starting a family owned business, please call me, your Denver business attorney, Elizabeth Lewis at 720-258-6647 today!
by eclewis | Jan 23, 2013 | Business News
So far this month, we have gone over starting a business by yourself and with your significant other. This week, we are going to touch on starting a business with a partner (or partners). In many cases, people determine that they do not want to go into business by themselves and that their significant other, while a great match for a life partner, is a terrible match for a business partner. After coming to these realizations, the hunt begins for a great business partner.
In some cases, business partners enter the picture like many other people in your life – without trying to find someone that is a perfect match, it just happens. It may be that you have a business and hire someone that ends up a great match for becoming a partner. Or it may be that you have someone that you have met through work or other social circles that is a compliment to you and would work great as a business partner. In other cases, it may take more work. You may have to attend networking events or search someone out to find someone that will work as a partner.
When determining if someone is a good business partner (regardless of how you met them), you need to ask a lot of questions. Going into business with someone is like marrying someone – and many times there is a lot more emotional and financial entanglement between business partners then even spouses. With a business partner, your livelihood is going to depend on what they do in regards to the company that you jointly own. Depending on how the business is set up, many times financial decisions will need to be run by them and approved by them in many cases. You will want to know what the person brings to the table (both financially and skill-set wise). Questions such as how many hours does the person want to work, what are their long term goals, what are their short term goals, how to they work with customers, what are their business plans, what are their strengths and weaknesses, and how they deal with difficulties are just some of the things you want to know before you enter into business with someone.
Legally, when you go into business with someone you need contracts between the two of you. You want to decide prior to having issues how you are going to deal with them – and you want this in writing. If you have an LLC, this is accomplished through documents such as an Operating Agreement, Membership Agreements, and Buy Sell Agreements. If you have a corporation, you will have Bylaws and Shareholder agreements. Careful drafting of these documents is a must as just like marriages, many business marriages fall too.
Tax wise, if you are going into business with partners, a careful look at all of the partners’ financial lives is necessary. While an s-corporation may be best for one partner, it may be that a partnership (as far as taxes) is better for another partner. If it ends up that different tax structures are better for different individuals, then this will be one of the first decisions that the partners will need to make. It may even be that due to the partners that are going to be included in the ownership, certain tax entities are unavailable. Therefore, in addition to having an attorney help structure the business and write the business documents, discussions with the CPA should take place early on.
If you have any questions about going into business with a partner or partners, please call me, your Denver business lawyer, Elizabeth Lewis, at 720-258-6647 today!
by eclewis | Jan 16, 2013 | Business News
Last week we talked about going into business by yourself. However, many times starting a business by yourself is a lonely undertaking that you don’t want to do and finding a business partner can seem harder than finding a significant other. When looking for the perfect business partner, some people start to think that the person they have decided to share their (non-business) lives with would be the perfect match. What better person to go into business with than the person that you live with, possibly have children with, and want to spend the rest of your life with?
While sometimes this works, before going into business with your spouse, significant other, or life partner you really need to think about it. Relationships are stressful – adding on the dimension of being business partners in addition to life partners can make, or many times break, a relationship. You may have different ideas of the type of business to start, the way to run a business, or the way to handle the finances of a business. In addition, you have no separation between your personal life and your business life.
Legally, there can be additional issues to tackle. When setting up a business owned by a married couple, discussions need to take place about what will happen to the business if the couple gets divorced, how the business will be financed, and how the business will be treated for estate planning purposes. If there is another party also in the business, even more careful planning needs to take place to make sure the business isn’t disrupted if there is martial disharmony between two of the owners that will affect the other (non-married) owners.
Tax-wise, when a business is going to be owned by a married couple, there may be different options for the tax treatment of the business. For instance, the couple may decide only to have one owner and be treated as a sole proprietorship, may decide to be treated as a partnership, or may elect for c-corporation or s-corporation status (setting up the appropriate legal entity for the type of tax entity selected of course). Discussions with the couples’ CPA to determine what tax treatment is best for the business are essential and should include tax planning and estate planning discussions.
If the business is owned by a couple who is not legally married (even if the couple is engaged and planning on being married), then the business should be set up just as a business would be between two partners who were not romantically involved. With a legally married couple, should the couple decide that they no longer want to be involved with one another, typically the couple is headed to divorce which means the splitting of the assets would be handled during the divorce. However, if a couple is not married, then if the couple decides to separate, the assets would be divided as decided by contract or by a court. In most cases, it is easier to decide how you would want assets split when you are still friendly (i.e. when setting up the business), rather than waiting until you want nothing to do with the other person. In addition, non-married couples need to have estate planning done to ensure that the person they intend to get the business actually does as the default rules for non-married couples are different than married couples. Again, a discussion with a CPA is needed to determine the tax treatment of the entity also.
Putting the legal issues to the back burner, opening a business is stressful emotionally and financially. Having one person in a relationship become self-employed can put a strain on a relationship. Having both people in a relationship become self-employed at the same time can be devastating if the business is not financially successful. Many times, even if a couple both want to start a business, one may want to consider staying at a paying job until the business is up and running. These are things a couple will want to discuss to make sure they are really ready to take the plunge before they do it.
If you have any questions about starting a small business with your significant other, please feel free to call me, your Denver business lawyer, at 720-258-6647 today!
by eclewis | Jan 9, 2013 | Business News
As many people’s New Year’s Resolutions include not working in the same old job by the end of the year, this month we are talking about ownership of a business. This week we are going to discuss opening a business by yourself.
Possibly the easiest way to start a business is to open it by yourself. When you open a business by yourself, you do not need to worry about making sure that you get consensus for decisions, determine who is going to be responsible for what, or get extensive legal documents prepared (although you should still have some legal documents prepared). Even little things can become easier such as deciding what hours you want to be open if you are opening a retail store, which customer your want to take, or something as basic as what name you are going to use for your business.
While making decisions may become easier, many things may become more difficult though. When opening a business by yourself, you are solely responsible for its success. This means that you may have to work longer hours or come up with more money than you would have to if you had business partners. It also means that you may have a harder time finding someone to bounce ideas off of as those around you may not be as invested in your business as business partners would be.
Some of the rewards of opening your own business come as it is more successful. For example, if you open a business by yourself, you get to reap the rewards of the business as it becomes financially better off (minus whatever Uncle Sam takes from it). You also get to know that you built the business yourself without the help of others (or at least with less help from others than you may have had with business partners).
If you have any questions about going into business by yourself, it is always a good idea to talk to other individuals that have opened businesses similar to the one that you are looking to open. Asking questions such as, “Why did you start your business on your own (or with partners)?”, “If you had it to do over again, would you start the business by yourself?”, and “What was the hardest part of starting a business by yourself (or with partners)?” are good questions to start with. It may help you determine if you want to go into business by yourself or with others.
If you have any questions about starting your business – either on your own or with partners – make sure to call me, your Denver business lawyer, Elizabeth Lewis today at 720-258-6647.
by eclewis | Jan 3, 2013 | Business News
One of the most common reasons new clients come into my office after the New Year is because the person (or persons) want to start a business. After yet another year has gone by working as part of a big corporation, people start to reconsider their purpose in life. Some decide that rather than working another year under someone else that this is the year that they are going to start their own venture – the year that they are going to enter the ranks of America’s small business owner.
There are many steps to starting, and then running, a small business. Meeting with an attorney is only one step in many. Some of the other steps include (and not necessarily in this order): meeting with a CPA, meeting with a banker, creating a business plan, researching your competition, finding business space, and finding a business advisor. It also requires deep soul searching to make sure that your personality and being a small business owner can work together – most small business owners (and I bet almost all successful ones) end up working longer hours than they ever believed imaginable!
There are many earlier posts about the types of businesses that you can start (and as always, I recommend speaking with an attorney like myself prior to starting a business to make sure you start it right). Therefore, rather than talking LLC/corporations/partnerships/etc., this month, we are going to talk about the basics of how to decide who to go into business with. Next week we will start with the pros and cons of going into business by yourself. The following week, going into business with a spouse or significant other and then with partners. Finally, we will talk a little about going into business with friends and family.
I hope you have a great New Year’s and that you have come up with some great New Year’s Resolutions! If any of your resolutions include business needs, make sure to call me, your Denver business attorney, Elizabeth Lewis, today at 720-258-6647!
