Whether you’re starting a new business or reorganizing an existing one, you may want to form a limited liability company (LLC), a type of business entity common in the United States.
For many small businesses, forming an LLC is a big step toward transforming a side hustle into a formal business. Even budding solopreneurs can benefit from switching their business structure from a sole proprietorship to an LLC.
State law regulates the formation and operation of LLCs, so before you incorporate an online business in your state, you’ll want to learn the ins and outs of how this structure works, as well as the benefits and drawbacks that come with it.
What is an LLC?
An LLC is a business structure that establishes a company as a separate entity, providing liability protection for the business owner. This means the owner(s) of the business cannot be held financially responsible for business debts or money judgments against the business as a result of legal action. In addition, LLC owners enjoy certain tax advantages over other business structures.
An LLC can be formed by one or more owners. Each owner is a “member.” If you have only one member, your business is considered a single-member LLC. If more than one person has a membership interest, you have a multi-member LLC.
How to form an LLC
The process for forming an LLC varies from state to state, but generally follows these six steps. Be sure to check guidance from the government office that handles business entities in your state, such as the Secretary of State or the Department of Commerce.
1. Pick a name for your LLC
Your name must be unique in your state, so check an online business name database before choosing. The business name must also end with “LLC,” its business entity type. Once you choose a name for your LLC, no other company can use that exact name in your state.
2. Select a registered agent
An LLC’s registered agent is an individual responsible for receiving official notices, including bills for annual fees, or lawsuits). Your registered agent can be one of the LLC’s members, or a third party. Your state should have a list of private registered agents, if you prefer to hire out.
If you opt to use professional services, they typically provide additional benefits like compliance tracking and notifications to ensure your LLC remains in good standing.
Here are some registered agent services you can use:
3. File Articles of Organization with your state
Once you have a name and registered agent, you’ll file your Articles of Organization. Some states call this paperwork by a different name, like “Certificate of Organization.” The forms should be available on your state’s website.
A few considerations when filing:
- Filing fees: The filing fee for Articles of Organization varies by state and can range from $50 to several hundred dollars.
- Online or paper filing: Depending on the state, you may have the option to file online or via mail. Review the state’s guidelines and follow the instructions carefully.
- Processing time: The processing time can vary widely, depending on the state and the time of year, ranging from a few days to several weeks.
4. Create an LLC operating agreement
An LLC’s operating agreement outlines its ownership structure. It’s not required in every state, but can be helpful—particularly for multi-member LLCs. A written LLC operating agreement provides a clear approach to how profits and losses are handled, along with the membership interests and rights of each member.
Here are two good templates:
Using templates like those above can help you craft a proper agreement. It may still be wise to consult with a legal professional to ensure that your agreement complies with your state’s laws and best serves your business’s unique needs.
5. Address local, state, and federal business requirements
A federal requirement of forming an LLC is to get an employer identification number, or EIN, from the Internal Revenue Service (IRS). Think of an EIN as a Social Security number for businesses. You must also register for a business license with your state and/or local government.
Forming an LLC covers your legal structure, but you also need to pick how that business entity will be taxed. There are a few different tax designations available. Sole proprietorship is the default tax designation for a single-member LLC, while multi-member LLCs typically enjoy general partnership tax treatment. However, limited liability companies can also elect to be taxed as corporations.
LLC laws vary from state to state. For guidance on how to start an LLC in your state, check out our state-specific guides:
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
How LLCs are taxed
An LLC is a legal entity, and there are various ways an LLC may elect to be taxed. That means that forming an LLC may or may not change the way the owners pay taxes. Here are the four most common ways that LLCs choose to organize for federal tax purposes.
- Sole proprietor (single-member LLCs only). In a single-member LLC, the business profits pass through to owners, who pay personal income tax on the full amount. Owners are considered self-employed and must also pay self-employment taxes, covering Social Security and Medicare.
- Partnership (multi-member LLCs only). In a partnership, the business profits pass through to each member, and each must pay income tax on their portion. In most cases, each member also pays self-employment taxes.
- S corporation (single or multi-member LLCs). Owners of an S corp may choose to pay themselves a salary and pay payroll taxes on their salary amount. The balance of the business profits pass through to owners as income, but they do not have to pay self-employment tax on these profits. S corporations also do not pay corporate taxes, as they are pass-through entities.
- C corporation (single or multi-member LLCs). All business profits are taxed at the corporate rate. Unlike the pass-through taxation scheme of an S corp, profit distributions taken from a C corp by LLC members are subject to personal income taxes. This is known as double taxation. C corp members don’t have to pay self-employment taxes. However, any LLC member who receives a salary will be subject to payroll taxes.
Regardless of which taxation status they choose, small business owners forming an LLC must distinguish their personal finances from their business finances. This could mean opening a separate business bank account and tracking business expenses.
Advantages of an LLC
The advantages of an LLC include legal protection and potential tax benefits for businesses of all sizes, whether it’s a one-person shop or a small business with a team of employees.
Easy and inexpensive formation process
LLCs are generally simple and inexpensive to form compared to other business entities. Initial filing fees vary from state to state, but it usually doesn’t cost more than a few hundred dollars to form an LLC.
There’s also a minimal amount of paperwork that needs to be filed at the time of formation, which typically includes a short form from the state’s business commission. Check with your state government’s website for the local application process and fees.
Personal assets are protected
Establishing an LLC helps you avoid being held personally responsible for your company’s failings. That means if someone files a lawsuit against the business, the plaintiff cannot go after owners’ personal assets, such as homes, cars, or cash savings.
This limited liability protection extends to creditors, who cannot collect any assets outside of the business in order to recoup losses (like defaulted loans).
Avoid double taxation
Unless an LLC elects to be taxed as a C corporation, it works as a pass-through entity. That means profits bypass the federal corporate tax rate of 21%. Instead of paying corporate taxes and personal income tax, members of the LLC report profits and losses on their personal tax returns and pay accordingly.
Legal and tax flexibility
Unlike corporations and most other business entity types, LLCs can choose how they want to be taxed.
LLCs offer flexibility in profit and loss distribution among the members. This distribution doesn’t have to align with the ownership percentage; it can be customized according to the members’ agreement.
Consider an LLC with three members, owning 50%, 30%, and 20%, respectively. They might agree that profits will be distributed equally among them, despite their different ownership percentages. This flexibility can be used to reflect the actual contributions and responsibilities of the members, leading to a more equitable arrangement.
Disadvantages of an LLC
LLCs involve more complex taxation and some startup costs. Limited liability protection is also not guaranteed, but rather contingent on business owners keeping their LLC separate from themselves. Here’s what to consider as you choose the best entity type for your business.
There are startup costs
There is usually a small filing fee associated with forming an LLC. Owners may also choose to employ a tax professional to handle the formation paperwork on their behalf, which adds cost to the process.
There are exceptions to personal liability protection
In most cases, LLC members’ personal assets are considered to be separate from the business, and thereby protected from any litigation involving the business. A judge may rule otherwise, however, if LLC members do not keep the business finances and operations separate from their personal finances, or if the company committed fraud.
Self-employment taxes may apply
Profits for LLCs taxed as sole proprietorships or partnerships are subject to self-employment tax in addition to income tax. Self-employment taxes cover both Social Security and Medicare taxes for owners. Combined, the federal self-employment tax rate for 2023 is 15.3%.
An IRS K-1 form is required to file taxes
Member-managed LLCs require an extra layer of paperwork for tax purposes. Each member of the LLC must file a Schedule K-1 (Form 1065). This document outlines each member’s income, deductions, and credits from the company, and members can’t file personal taxes without it.
Some states require an LLC to reform if a member leaves
If your LLC has multiple members, you may be required to dissolve it and reform as a new one if a member leaves the company. This is true whether a member exits the venture or passes away.
How do LLCs compare to other business entity types?
Here’s how an LLC stacks up against other types of business entities and taxation structures.
- LLC vs. sole proprietorship: Forming as an LLC rather than a sole proprietorship allows you to protect your personal assets from business debt and lawsuits. While LLCs are fairly lightweight compared to other corporate structures, paperwork and taxes are more cumbersome as an LLC than they are as a sole proprietor. There are also filing fees associated with forming an LLC. Sole proprietorships don’t have this overhead cost.
- LLC vs. corporation: Corporations are a tax designation available to LLCs (a legal entity). LLCs that elect to be taxed as C corporations pay corporate taxes. LLCs that elect to be taxed as S corporations (or as sole proprietorships or partnerships) remain pass-through entities and do not pay corporate taxes.
- LLC vs. LLP: While an LLC has one or more members, a limited liability partnership (LLP) has at least two owners, called partners. Liability protection for LLP partners is sometimes more individualized than it is for LLC members. Forming as an LLP is often restricted to certain professional services, like lawyers or accountants. Each state has its own rules about what types of businesses may incorporate as an LLP.
An LLC can be an advantageous business structure for small businesses, especially those seeking liability protection for their personal assets. However, it’s important to carefully review and choose taxation options; while there are benefits, such as protection of your personal assets, there are also some trade-offs to consider, like startup costs and more complicated taxes.
Overall, the ease and convenience of forming an LLC makes it a strategic choice for many entrepreneurs and business owners.