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Business Start-Up

Last Modified: 01/07/2020

A for-profit business is established for the purpose of making a profit for its owners or investors. The structure of the business determines how income from your business is taxed and the level of personal liability you will have as the business owner. The most common types of business structures are corporations, limited liability companies (also known as LLCs), sole proprietorships, and partnerships. Some business structures may offer certain protection from personal liability. When you limit your liability, you set monetary caps on how responsible you are for damages when something goes wrong with your business.

CLSMF can help eligible clients decide which business structure may be best from a legal perspective, draft the documents that are needed to form a business entity, and provide guidance on where to file and what to expect. If you have already established your business, CLSMF attorneys can review contracts, draft joint venture/partnership agreements, train your Board of Directors about legal requirements, and provide other legal services.

WHAT ARE YOUR RIGHTS?

The U.S. Small Business Administration provides helpful information about the steps to follow when starting a business, including planning, making key financial decisions, and completing legal requirements.  Check out this quick 10-step guide.  

Before starting a business, you should research what is required in Florida and by the Internal Revenue Service (IRS). 

It is a good idea to consult both an attorney and a tax professional before starting a business.

To start a business in Florida, you will need to determine which business structure is best for you. Common business structures include corporations, limited liability companies, sole proprietorships, and partnerships. 

The business type you choose may have tax implications on your personal finances as well. It is a good idea to consult both an attorney and a tax professional before you decide which business type is best for you. 

 

A corporation is a legal entity that is separate and distinct from its owners/shareholders. Liability is limited for the shareholders of a corporation. Taxation depends on the type of corporation (e.g. C-corporation or S-corporation). In Florida, corporations must pay Florida Corporate Income Tax. 

 

 

 

A limited liability company is similar to a corporation but differs in that it has the option to function as a “passthrough entity.” This means the profits/losses from the business become taxable to the members and are claimed on their individual tax returns. Like a corporation, LLCs offer the owners limited personal liability, but have fewer management requirements and may have fewer tax responsibilities.

 

 

 

A sole proprietorship is the simplest way to structure a new Florida business but does not offer liability protection for the business owner. The business and its single owner are considered the same for tax purposes. A sole proprietor must be responsible for all debts, expenses, and profits of the business.

 

 

 

A partnership is a business entity owned by two or more individuals who will share the responsibilities, profits, and liabilities of the partnership. General partnerships do not provide protection from liability, so the partners are personally liable for the debts and obligations of the partnership. The partners should enter into a partnership agreement outlining how they want to manage the business. 

 

 

Check this site for more information about the different business structure options.

https://dos.myflorida.com/sunbiz/start-business/corporate-structure

WHAT DO YOU NEED TO DO?

If you decide to operate your business as a sole proprietorship, you will operate the business under your own legal name or you may give your business a different name. If you use a name other than your own for your sole proprietorship, you will need to register the “fictitious name” with the State. 

If you decide to form an LLC or a corporation, the business name must be different from other business names that have been created by other business owners and are already registered with the Florida Department of State. You may conduct a search of other business names already registered by searching Sunbiz at  http://search.sunbiz.org/Inquiry/CorporationSearch/ByName

If you are forming a corporation, the name must contain the word “corporation,” “company,” or “incorporated,” (or the abbreviation or designation “Corp.,” “Inc.,” or “Co.”) to indicate that it is a corporation instead of a natural person, partnership, or other entity. If forming an LLC, the name must contain the words “limited liability company” or the abbreviation “L.L.C.” or “LLC.”

A fictitious name registration is not required to form an LLC or a corporation. However, if you use a name for your LLC or corporation that is different from the name under which it was registered with the State, you will also have to register the fictitious name.

Corporations and LLCs must register with the Florida Department of State, Division of Corporations. Fees for filing and the documents you must file vary depending on the type of business structure you choose. Current filing fees for corporations may be found at https://dos.myflorida.com/sunbiz/start-business/efile/fl-profit-corporation/. Information about filing fees for LLCs is available at https://dos.myflorida.com/sunbiz/start-business/efile/fl-llc/.

If you are forming a corporation or LLC, you will need to choose a registered agent. A “registered agent” is a business or individual designated to receive service of process, such as the summons and complaint in a lawsuit, when a business entity is a party in a legal action.

If you are forming a corporation or LLC, you will need someone to be the business incorporator. An “incorporator” is a person who forms a corporation.

 

A Federal Employer Identification Number (EIN), also known as a Federal Tax Identification Number, is a number used to identify a business, much like a social security number is used to identify a person. Most businesses need an EIN.

 

The easiest way to apply for an EIN through the IRS is to apply online. There is no cost and the number will be immediately issued to you. 

Depending on the type of service(s) provided or good(s) sold by the business, you may need to apply for one or more professional or occupational licenses. If you are going to operate a business that is regulated by the Florida Department of Business and Professional Regulation (DBPR), you may apply online through the DBPR website. 

 

You may also need licenses from your local city or county, so be sure to research local requirements before doing any business.

 

 

Payment of sales tax may be required for your business. If you are going to sell goods or services to consumers, you will need to register with the Florida Department of Revenue to collect and remit sales tax.   

Your business may be required to pay reemployment taxes. If you are going to have employees, you will need to pay reemployment taxes to the Florida Department of Revenue.   

Your business may be required to pay income taxes. If you decide to form a corporation or other business type that is taxed federally as a corporation, you will need to pay Florida Corporate Income Tax to the Florida Department of Revenue. 

The business’s annual requirements will depend on the type of business you start. Many businesses must file an annual report or statement of information with the State of Florida and pay an annual filing fee. More information is available below.

After you speak to an attorney and a tax professional to determine that a corporation is the best business type for you, you will need to file your articles of incorporation with the State of Florida. If you do not have an attorney to assist you with drafting your articles, form articles are available here: https://dos.myflorida.com/sunbiz/start-business/efile/fl-profit-corporation/.

You must pay a fee to file articles of incorporation with the Florida Department of State, Division of Corporations. There is an additional mandatory fee to designate a registered agent. A certified copy of the articles or a certificate of status are both optional documents which require an additional charge. A certificate of status issued by the State is conclusive evidence the corporation is in existence and is of active status. These optional documents may be useful if you plan to apply for loans or grants. A list of current fees is available here.

Once you file your articles, it generally takes two to six weeks to receive a response from the State recognizing the business.

Before doing any business, you will need written bylaws — the rules of how the corporation will operate. This document is not filed with the State but is very important for managing the business. It may also be requested if you apply for a loan or grant. The best practice is to work with an attorney to draft the business’s bylaws.

Corporations must file an annual report with the State and pay an annual fee. If you do not file by May 1 each year, there is an additional late fee. Information on annual reports and associated fees may be found at here.

After you speak to an attorney and a tax professional to determine that an LLC is the best business type for you, you will need to file articles of operation with the State. If you do not have an attorney to assist you with drafting your articles, form articles are available here.

You must pay a fee to file the articles with the State, as well as to designate the registered agent for the business. You may choose to pay additional fees to receive a certified copy of the articles or obtain a certificate of status for the business. A certificate of status issued by the State is conclusive evidence the business exists and is of active status. These optional documents may be useful if you plan to apply for a loan or grant. Current fee amounts may be found  here.

Once you file your articles, it generally takes two to six weeks to receive a response from the State recognizing the business.

Before doing any business, you will need an operating agreement to set out the rules for how the LLC will operate. This document is not filed with the State, but is very important for managing the business. It may also be requested if you apply for a loan or grant. The best practice is to work with an attorney to draft the business’s operating agreement. 

LLCs must file an annual report with the State and pay an annual fee. If you do not file by May 1 each year, there is an additional late fee. Information on annual reports and associated fees may be found here.  

No formal steps are required to form a sole proprietorship. This is the default entity type formed whether you file formal paperwork with the State or not.

If you conduct business using a business name, also referred to as a DBA (doing business as) or a fictitious name, you will need to register the fictitious name with the State

A sole proprietorship only has one owner. If you are working with another person who also has or will have an ownership interest in the business, the business cannot be a sole proprietorship. 

Sole proprietorships do not offer personal liability protection for the owner and any income earned by the business is reported to the IRS on the owner’s personal tax return. 

You should speak to an attorney and a tax professional before choosing to run your business as a sole proprietorship.

A general partnership is formed when two or more owners start a business together and share in the profits and losses of the business. As with a sole proprietorship, no formal filings are necessary. However, general partnerships have the option of registering with the State of Florida. The fee to file is listed at the bottom of the registration form, which can be found here.

A limited partnership is composed of both general partners (who have the right to run the business) and limited partners (who do not have that right). Both general partners and limited partners share in the business’s profits. A limited partnership is formed by filing a certificate of limited partnership with the State of Florida. You must pay a fee to file a certificate and to designate a registered agent. You may also choose to obtain a certified copy of the articles or a certification of status at an additional charge. Information on relevant fees can be found on this webpage. 

WHAT TO CONSIDER BEFORE TAKING ACTION

It is best to speak with an attorney before filing with the State. If articles are filed incorrectly, they may be difficult to correct and a filing fee may be required.

Starting and operating a business requires careful planning. Your business structure may affect your taxes, your ability to raise money, the types of documents you will need to file with government agencies, the control you have over your business, and your personal liability. Here are some factors to consider.

Before you start a business, speak to a business management professional to create business and financial plans for your business.

Corporations are governed by the Florida Business Corporations Act. http://form.sunbiz.org/pdf/607_Booklet.pdf.

LLCs are governed by the Florida Revised Limited Liability Act.   http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0600-0699/0605/0605.html

Partnerships are governed by Chapter 620 of the Florida Statutes.   http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0600-0699/0620/0620ContentsIndex.html.

A sole proprietorship is the least complex way to form and operate a business. You create a sole proprietorship simply by going into business by yourself. 

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