Tax Audit Risk Among Reasons to Incorporate Side Business

CPA Michael Hanley, who specializes in working with small business, advises:

"The #1 most overlooked tip by people running side businesses is that they fail to setup a business entity because they still view their business as a little side business that they will incorporate when things take off."

Sole Proprietorships (the business structure you default to if you fail to setup a Corporation, LLC, etc) are subject to the highest audit risk out of all the business structures. The reason for this high audit risk is that all Sole Proprietorships report their business income and expenses on Schedule C (the second most highly audited form that you can attach to your tax return). By setting up an S Corporation, you become nine times less likely to be selected for a random IRS audit (audit risk decreases from 2.7% to .3%, making it very possible that you can go your entire life without ever being selected for an audit).

Setting up a Side Business Can Be Risky Unless You Do it Right, Mithcell York, About.com: Enterepreneurs

Los Angeles Business Tax Break Proposed

Los Angeles' mayor today proposed an expansion of the City of Los Angeles' new business tax exemption, from two to three years, assuming gross revenues of less than $500,000:

Tax Break for New Businesses Proposed, Los Angeles Business Journal, June 15, 2010

CEOs rank California 51st for Business Environment

More than 600 CEOs rated states on a wide range of criteria from taxation and regulation to workforce quality and living environment, in our sixth annual special report.

In Chief Executive’s annual survey of best and worst states for business, conducted in late January of this year, 651 CEOs across the U.S. again gave Texas top honors, closely followed by North Carolina, Tennessee and Virginia. They gave the booby prize for worst state to California, with New York, Michigan, New Jersey and Massachusetts filling out the bottom five-a line-up virtually unchanged from last year. Florida and Georgia each dropped three places in the ranking, but remain in the top 10. Utah jumped six positions this year to sneak into the top 10 at No. 9.

The business leaders were asked to draw upon their direct experience to rate each state in three general categories: taxation and regulation, quality of workforce and living environment.

Best and Worst States for Business 2010, chiefexecutive.net, 29 April 2010

See also Of 50 States, California ranks 51st, Orange County Register editorial, 5 May 2010:

As the magazine noted, Californians pay among the nation's highest income and sales taxes. Unemployment exceeds the national average, and, contrary to the national trend, "union density is climbing, from 16.1 percent of workers in 1998 to 17.8 percent in 2002."

Indeed, according to the magazine's critique, "organized labor has more political influence in California than in most other states." The magazine zeroes in on perhaps the crux of the problem: "When state employees reach critical mass, they tend to become a permanent lobby for continual growth in government."

That helps to explain why unfunded pension and health care promises for state workers "top $500 billion, and the annual pension contribution has climbed from $320 million to $7.3 billion in less than a decade," as the magazine noted.

It doesn't take a national survey to reveal California's failing business climate. Seven California metro areas were among the 15 national leaders in commercial bankruptcy filings in 2009, according to Equifax Inc. Not coincidentally, California had twice as many personal bankruptcies as any other state in 2009 when it ranked 11th in bankruptcies per capita.

It also doesn't take a CEO to notice the differences between California and top-rated Texas. Texas, with nearly as many residents and the world's 12th largest economy, "is where 70 percent of all new U.S. jobs have been created since 2008," the magazine reported. Also unsurprisingly, Texas gained more than 848,000 net residents based on migration in and out of the state in the past decade, while California lost 1.5 million, according to the Census.

"You feel like [Texas] state government understands the value of business and industry to create jobs and growth," one CEO said in the magazine.

California Secretary of State Processing Times

California Secretary of State business entity filing times have soared since the first of the year, as a result of the state budget crisis and resulting budget and staff cuts at the Secretary of State's office (which included the closing of some regional offices).

Alas, the Secretary of State also failed to notify practitioners or the general public about these changes before the fact, resulting in unexpected delays to the tune of 6-8 week turnaround for business entity (LLC, corporation, etc.) filings by mail and standard over-the-counter expedited filing times increasing to three weeks and sometimes more from an average of less than two.

Belatedly, the SOS issued this apologetic announcement earlier this month:

http://www.sos.ca.gov/business/pdf/processing-times.pdf [subsequently updated in 2011 to provide an update on the progress the SOS is making to work through these issues]

California Annual Minimum Franchise Tax Repeal Proposed

A bipartisan commission appointed by Governor Schwarzenegger has recently proposed sweeping overhauls of California's tax laws, including reduction of personal income tax rates, the elimination of the corporate tax, and the elimination of the $800 per yaer minimum annual franchise tax levied on corporations, LLCs, and LLPs doing business in the state. The committee did, however, propose a 4% business net profits tax, exempting small businesses with less than $500,000 in revenues.

The recommendations are only that, and must be acted upon by the legislature and governor in order to become law.

For more information see:

Commission on the 21st Centuray Economy Press Release dated September 29, 2009

California Attorney General Targets Annual Minutes "Scam"

California's attorney general has filed suit against a nyumber of individuals and companies to combat what he calls a scam targeting small businesses:

News Release
October 08, 2009
For Immediate Release
Contact: (916) 324-5500

Brown Sues 8 Individuals and 6 Businesses Operating Scams Targeting California Small Businesses

San Diego - Continuing his fight against "rip-off artists" operating in California, Attorney General Edmund G. Brown Jr. filed suit today against eight individuals and six businesses that operated scams targeting small business owners. The lawsuits, filed today in San Diego Superior Court, seek to recover more than $3 million.

Schedule note: Brown is in San Diego this morning and is available to speak about these cases at approximately 10:30 -- at the Hilton Bayfront Hotel - downtown (Indigo A Room, 1 Park Blvd in San Diego 92101.

"These cases will send a powerful signal that small business owners must be on the alert," Brown said. "These rip-off artists sent official-looking documents through the mail for the sole purpose of duping small business owners into paying them money - for no value in return."

The three cases are separate scams, each following a similar theme. The defendants mailed to small businesses solicitations that appeared to be government documents featuring an official-looking seal, an official-sounding name, citations to the Corporations Code and a "reply by" date. The forms claimed that the business was in danger of losing its corporate or limited liability status if payment was not made within a short period of time.

In the first case, Anthony Williams operated Compliance Annual Minutes Board that mailed to California businesses official-looking forms demanding that the recipient complete the form and return it with payment of an "Annual Fee" of $150 or risk loss of corporate status. Williams claimed that in exchange for payment, he would provide corporate minutes. Instead, he prepared generic fictitious minutes for the business owners who paid his fee.

The next case involved George Alan Miller, Rebecca Miller, Arghisti Keshishyan and Kristina Keshishyan who together operated two corporations and one limited liability company: Annual Review Board, Inc., Business Filings Division and Corpfilers.com, LLC. Miller and his co-conspirators mailed solicitations to California limited liability companies and corporations, demanding that the recipients complete the form and return it with payment or risk penalties, fines and suspension. The payment amounts varied from $195 to $239, but all mailers were designed to be official-looking government documents that misled the recipients into sending money.

In the third case, Maria Jones operated Corporate Filings Division and Corporate Compliance Filings, Inc., which mailed official-looking forms entitled "Annual Minutes Disclosure Statement" to California businesses, implying that the recipient business was required to complete the form and return it with payment of an "Annual Fee" of $175 or risk loss of corporate status. In exchange for payment, Jones agreed to provide corporate minutes. The information she solicited, however, was inadequate for legitimate corporate minutes, and she instead provided fictitious minutes.

All defendants are accused of violating:

- Business and Professions Code section 17533.6 (Deceptive Solicitation Statute)
- Civil Code section 1716 (Phony Billing Statute)
- Business and Professions Code section 17500 (False Advertising Statute)
- Unfair business practices within the meaning of Business and Professions Code section 17200.

In all three cases, the Attorney General's Office seeks civil penalties, injunction and other equitable remedies and costs.

Since 2004, the Attorney General's Office has received more than 5,000 complaints against a growing number of individuals who mailed solicitations made to look like governmental forms to small businesses in California. Today's announcement adds to the five cases the office has already successfully handled since these scams were brought to the office's attention....

See also: California Corporate Compliance Annual Minutes

Employment Law in a Social Networking, New Media World

I am quoted in a FOXBusiness small business article on how employers can protect their intellectual property rights in a Facebook/Twitter social networking world:

In an age of way-too-much information and widespread social-networking addiction, businesses are finding it increasingly difficult to protect trade secrets and practices. It’s important to know your rights as an employer and/or as an employee.

If you are neither of the above at the moment, and are instead on the job hunt, you should keep in mind that potential employers have the right to (and will) research your online living activities. In one quick Google search, what might a recruiter learn about you? It’s important to always keep your professional goals in mind when posting personal details on sites that are publicly accessible.

If you pass the test and find yourself employed, you’ll then have to follow company policy regarding Internet activities. Because privacy is often a top concern for employer and employee, companies are adjusting to the new online environment and adopting rules and regulations accordingly to ensure protection.

Anita Campbell, founder and CEO of Smallbiztrends.com, said there’s a major difference between large corporations and small businesses when it comes to social media sites. Large corporations are more likely to block all social media sites, such as Facebook and Twitter, from being accessed on the company network.

However, she said most small businesses do not block these sites at work and, in some cases, require employees to participate in them for company benefits. Jonas M. Grant, a business attorney and expert, said some employers rightfully worry about the disclosure of confidential company information by employees who are either posting on Web sites under their own names or anonymously. But he said employers do have the right to legally prohibit certain social-networking activities involving the business to avoid a slip of an idea or secret.

According to Campbell, small businesses using social media networks can have advantages and disadvantages. Recommending your employees take full advantage of the power of social media for “free” marketing is a definite plus. But allowing employees to have access to social media all day can deter them from actually working, decreasing productivity.

“But the stickier issue is one of inappropriate communications by employees,” Campbell said.

Grant recommends companies have an employee manual and training program in place specifying acceptable workplace use of the Internet in general. He said employers should expressly tell their employees what they can and cannot talk about, especially in an age with constant Internet communication.
“Employers are also wise to have employees sign employee loyalty and confidentiality agreements at the time of hire,” Grant said.

Experts agree that prevention is key for small businesses, and preparing for “what-ifs” is the best protection. Grant said communicating concerns with employees, outlining company rules and restrictions, while implementing appropriate policies and agreements in conjunction with employment law counsel, is the best method of prevention.

What Rights Do Employers, Employees Have in Internet Age? by Hope Holland, FOXBusiness.com, October 22, 2009