Filings, Amendments & Consultation
You have a great idea for a business, or maybe you've been operating your business for a while now. In either case, it is a good idea to make sure you've thought through a few things to help your business reach its true potential.
Business owners have never had more choices. These choices may seem daunting at first, but if you take the time to plan things out, you can set your business on the path towards prosperity.
This business formation guide discusses the most important legal choices step by step, in the order they are generally best considered. This discussion focuses on forming a business in Colorado but the information herein is relevant to nearly anyone who has or wants to start a business of any kind.
Business Formation Guide Sections:
Of course, if you need help with any of these things, please Reach out, Today!
You're probably wondering why your business name is something you might want to discuss with a business attorney. You may think you've already got a great name for your business. Maybe you've had a particular name in mind for years, or maybe your daughter just came up with something clever and catchy at breakfast.
Regardless, there are some important things to consider before printing your business cards.
First, you should make sure that the name you're considering is available.
If your business operates under only your legal name in a sole proprietorship or general partnership, you do not need to register your business name. But if you're coming up with the name of your business, you will need to register it with the Colorado Secretary of State's Office.
If you're operating out of another state, you will likely need to register with the Secretary of State's office in that state.
If you already have an exact name in mind, you can perform a Name Availability Search to see if your name is available. If you have only a rough idea of what you'd like to name your business, you can perform a Business Database Search to see whether other businesses are already using a name similar to the one you have in mind.
Even if you have an exact name selected already, it may still be a good idea to do a Business Database Search in order to see whether there's a business out there with a similar name, whether the actual name or a tradename (or "doing business as" or "DBA") of the business.
If you are looking to form or operate your business in another state, you should search for name availability in those states as well. It may also be a good idea to search for the name using a mainstream search engine, like Google, since you never know what unfortunate results you may find that you do not want associated with your business.
If your preferred business name is unavailable for registration with your Secretary of State's office, you may want to consider registering your preferred name as a tradename or DBA for your business.
A tradename or DBA may be registered even if is similar or exactly the same as the name of a registered business, allowing you to operate your business with your preferred name even if another business has already registered that name.
Furthermore, if your business did not require you to register your business name -- that is, if you are operating a sole proprietorship or general partnership under your legal name -- you may want to register a tradename or DBA in order to help brand your business, to protect your personal identity, or to obtain a federal tax ID number (EIN). (More information on these topics can be found below.)
The next consideration when naming your business is whether the name you have selected has already been registered as a trademark of another business. If it has, you will not be able to register the name of your business with the United States Patent and Trademark Office (USPTO) and, worse still, your use of the name may infringe upon the rights of the owner of that registered trademark.
The good news is that if you've already searched the Colorado Business Database, you will already know whether your chosen name has been registered in the state of Colorado as a trademark.
But not every owner of a trademark registers it with the states where the mark is used, so it is a good idea to check with the USPTO to see whether the mark has been registered federally. You can search the Trademark Electronic Search System (TESS) to see whether someone has registered a trademark that is similar to your preferred business name.
It is important to note, however, that a comprehensive search for a mark in TESS can be a complex and time-consuming process and many trademark owners pay experienced attorneys to perform these so-call "clearance searches" in order to make sure that no one else is already using a mark that would be "confusingly similar" to an intended business name.
More information on trademark registration can be found on the Trademarks & Copyrights page on this site. If you need assistance performing a clearance search, registering a trademark, or selecting an available business name, please Reach out, Today!
If you are planning on using your business name as a domain name (or URL) for your business's website, you should check the availability of that domain name with an accredited registrar. By registering your business's domain name, no one else will be able to register or use that domain name as long as you own it. This helps protect your business and brand online.
Even if you do not currently plan on having a website for your business, it may still be a good idea to purchase the domain name as soon as possible because (a) you do not want someone else to use that site name and create confusion for your business or steal your customers or (b) you may later decide to create a website only to find that the name is no longer available. It is generally very cheap -- less than $12/year -- to register a domain name, although the price can vary depending on the popularity of the name you have chosen and the registrar you're purchasing from.
For this reason, businesses will sometimes purchase not only the exact name of their business as a domain name, but also other names that might be similar. If there is a common misspelling of a word in your business name, you may want to consider picking up the domain name with that misspelling as well, in order to redirect that domain to your preferred one. You may also wish to purchase a .net, .us, .org, etc. domain in addition to a .com.
Finally, though not a legal requirement, it is important to recognize that your business name will affect your ability to get both customers and investors.
A good practice is to choose a simple and memorable name that suggests qualities that you would like associated with your business. You wouldn't want to choose a name that has a certain stigma or negative connotation that you would have to work hard to overcome.
This is why a bit of searching at the outset can avoid significant, perhaps insurmountable, difficulties later on. What's the saying? An ounce of prevention is worth a pound of cure.
If you have gone through these steps and have a name for your business that you love, but you are not yet ready to form an entity for it, you may reserve the name with the Colorado Secretary of State. Otherwise, you will register the name of your business when you file the documents that create your business entity. (More information on business registration can be found in the Registering Your Business section, below.)
For additional general information about naming your business, see the Small Business Administration (SBA) page on Choosing Your Business Name.
Second - but arguably most importantly - every entrepreneur or business owner should consider the type of entity and structure for their business.
The type of entity you choose for your business will determine the parameters of how you can structure your business, including how your business will be managed and whether any owners of the business will be protected from liability for the business's debts and obligations. No other single choice will affect so much about your business, from its day-to-day operations to its potential for growth.
Ideally, this choice should be made early on - before seeking financing or signing any contracts. (Contracts should be signed in the name of your business, not in your personal name, once it has been formed.)
You may be able to restructure or convert a business you're already operating down the road, but be careful as there may be tax consequences and other costs for doing so.
These common choices will be discussed below. But for more detailed information on a particular type of entity, please click on its name to follow the link to that particular entity's page.
Are you planning on starting a business by yourself? If you simply begin operating your business without filing paperwork to form an entity, you have a sole proprietorship. Are you planning on starting your business with one or more other people? If you begin operating your business without filing any paperwork to form a particular entity, you are operating a general partnership.
Neither of these entities offers any liability protection. So, if you want to protect your personal assets, you must file paperwork to form an entity.
Colorado business owners can select from an array of business-entity types. Informed selection among these options generally allows owners to achieve objectively better results.
Each type of entity has its own advantages and disadvantages, in terms of liability, funding, and tax implications as well as costs, paperwork, and time requirements (which vary from state to state). There are also important differences in the management type of each entity and how flexible the management structure can be.
Depending on your goals, it may be useful to form two or more entities. For example, you may want to form at least a couple LLCs to hold different assets or to have one manage the other(s).
When thinking about forming an entity, most prospective business owners are interested in achieving liability protection. Liability protection prevents creditors and others to whom the business may be liable from attempting to satisfy the liabilities of the business from the personal assets of its owners.
Entities that offer liability protection generally have "limited liability" in the name of the entity or are incorporated entities (like conventional for-profit corporations and public benefit corporations).
Sole proprietorships and general partnerships leave their owners with potentially unlimited personally liability for the debts and obligations of the business.
A limited liability partnership (LLP), on the other hand, protects partners from personal liability. But an LLP must be registered with the Secretary of State and has required annual paperwork that a general partnership does not have. In fact, registration and annual paperwork is required for all Colorado entities that provide liability protection.
The liability protection as well as formation and other requirements of each of these entities are discussed more fully on its own formation page. If you are interested in learning more, please follow the link to that particular entity's page.
To determine whether you need liability protection, it is important to consider not only your lenders and creditors, but also the sorts of activities that your business and its employees will be involved in as well as the risks that those activties create.
Will you have employees that drive for your business? Will you have customers coming onto your property? Will you be serving food or alcohol?
These are just a few common questions, but there are many more that could be relevant to your business depending on the risks it generates.
Having considered their businesses' risks and needs, many owners opt to form some sort of limited liability entity in order to protect their personal assets.
But it is not enough to simply form an entity that offers liability protection and expect that your personal assets will be safe from creditors of your business. Rather, forming the entity is necessary, but not sufficient. You must also respect your business as a separate entity in its operations.
In order to "walk the walk," you must do things like maintain separate bank accounts, keep proper books and records, and contract in the entity's name.
If a court finds that you did not respect the separateness of your entity, you risk that court likewise disregarding the separateness of your entity. This is referred to as "piercing the veil" and there are two articles on this site that discuss it more fully: The Current State of Veil-Piercing Law (Colorado) and LLC Talk: Single-Member LLCs - Asset Protection.
There's no way around it; it takes money to start a business. Your business plan will help you determine how much money your business will need.
Entrepreneurs and others typically have four options when it comes to funding their businesses and ventures: (1) self-funding, (2) outside investment, (3) loans, and (4) grants.
Self-funding is using the personal capital and resources of the owners in order to finance your business. It comes with no strings attached; there is no interest, no loss of equity in the business, and no loss of control over its operations. (Although the relative control of the owners may shift based on their respective contributions to the business.)
The downside, of course, is that self-funding requires you and any other owners to personally have enough cash available to continue to fund the business until it is sustainable on its own. Depending on personal resources, self-funding can limit the growth and expansion of your business and may require you to forgo certain opportunities.
Gifts from family or friends may also be considered a kind of "self-funding," particularly if there are no conditions or expectations of a return. Depending on your personal situation, turning to family or friends may be a good option for improving the financial outlook of your business.
If gifts are not an option for you, family or friends may be willing to invest in your business or loan money to it at better interest rates than an outside lender would offer. Outside investment and loans, whatever their terms, are discussed next.
Outside Investment: Given the difficulties of self-funding, entrepreneurs and other prospective business owners often seek outside funding. Investors, who provide capital in exchange for equity, are one option for outside funding.
Forming a business with liability protection is generally helpful if you are looking to raise capital from outside, or passive, investors. Passive investors are investors who put up money in expectation of a return on that investment, but who do not participate in the management or day-to-day operations of the business. Experienced investors generally expect liability protection since they have no ability to influence management decisions.
As discussed above, liability protection, whether for passive investors or owners who are active in management, generally limits the owners' personal liability for business obligations except for the amount that a particular owner has contributed to or invested in the business. Accordingly, creditors cannot come after the personal assets of the owners if the business cannot pay its debts or satisfy its obligations.
If your business is looking to raise venture capital from professional investors or to make a public offering (i.e. "going public"), it is generally beneficial to structure your business as a corporation since corporations are able to sell stock in the business in order to secure additional funding to continue or expand operations.
Partnerships and sole proprietorships can have a much harder time attracting this sort of funding in part because they do not offer the same sort of liability protection, but also because they generally dissolve (i.e. cease to exist) when their owners are no longer able to operate the business.
Loans: If you need outside funding, but do not wish to part with equity in your business, you will have to look for loans or grants. Loans allow your business to acquire funds to operate without parting with equity in the business. Instead, loans require repayment - not only of the amount borrowed but also interest on that amount.
How much interest you'll have to repay will depend upon your business's, or your personal, credit score. If your business has not yet established its credit, you may have to pledge your personal credit in order to obtain loans from a lender.
Moreover, where a lender has concerns about your or your business's credit score, they may require collateral or a guarantor before approving a loan.
There are various lenders out there, but your business may not qualify for loans from every source. Private loans from banks, for example, may be easier to qualify for but generally have high interest rates.
Small Business Administration loans may also be available at lower interest rates, but they are generally more difficult to qualify for. Visit Loans | SBA.gov for more information or Lender Match to find a lender who offers SBA-guaranteed loans.
Grant funding is not a common option and is much harder to come by for startups and new businesses. Its availability can vary considerably depending on the sort of business you operate (conventional for-profit or public benefit) and the types of products or services your business offers.
If you are interested in grant funding, visit Colorado SBIR to search for grants that may be available depending on your type of business. (Colorado SBIR is a nonprofit organization that may be able to assist you as an entrepreneur, innovator, or scientist to find and secure SBIR funding.) Grants may also be available to owners who fit specific demographics or come from certain backgrounds.
Each business owner must make the tradeoffs that work best in their situation for their business's goals and needs.
Another important consideration for many prospective business owners is the amount of control that they have and will continue to have over their business. Do you want to be involved in the day-to-day operations and decision making of the business, or do you want to select or hire professional managers to handle those things?
Of course, if you have co-founded your business, you will have to share control with the other owners, but there is still room to shape roles and responsibilities or to require a greater or lesser degree of consensus in decision making.
It is important to understand that, even for a sole proprietorship, determining the management structure of your business does not depend on the answer to a single, simple question.
It is not, for example, just a question of whether you want the owners, as owners, to be involved in the management of the business. That is one question to consider, but the types of entities available permit more flexibility than that and businesses generally benefit from ensuring the best fit between their management structure and both the short-term and long-term goals of the business.
Governing documents and agreements allow business owners to shape and define the rights, roles, and responsibilities of those who are in charge of the day-to-day operations and decision making of the business. (For example, even the sole member of a member-managed LLC or sole proprietor may want to contract for and hire a management company to handle the day-to-day operations of its business.)
LLCs are generally the most flexible entity when it comes to management structure. In Colorado, an LLC may elect in its founding document (its "Articles of Organization") to be formed as either a member-managed (where the owners as such directly control the management of the business) or a manager-managed LLC (where managers are hired or designated to manage the business).
Moreover, an LLC's "operating agreement," expressing the agreement of its owners, allows management arrangements to be further shaped and refined to suit the needs and purposes of the business. For a more complete discussion, see the section on LLC Operating Agreements or the article titled Giving "Maximum Effect" to Operating Agreement Terms.
But some entities are more flexible than others when it comes to shaping these rights, roles, and responsibilities.
There are also various structures available to partners in partnerships (whether only general partners or a mix of general and limited partners) and, as with the operating agreements of LLCs, partnership agreements allow the partners to further define and refine the rights, roles, and responsibilities of the partners. More information can be found in the section on Parntership Agreements.
Most prospective business owners are at least somewhat familiar with corporations. In a corporation, the management of the business is separated by law from its owners. As is generally the case with other manager-managed businesses, the shareholders participate in major business decisions (like whether to merge with another company) but leave the day-to-day operations and ordinary business decisions to its officers who are selected by its board of directors.
However, in close (or closely-held) corporations it is not uncommon the directors or officers of a corporation to be its shareholders. So the same person can be both a shareholder and a director or officer.
But corporations require their owners observe certain formalities, including holding regular meetings, keeping records of those meetings, and several other things (described more fully on the corporations page.
The management of conventional for-profit corporations focuses on creating value for its shareholders. However, management decisions have considerable protection from judicial second guessing which allows for quite a bit of flexibility.
But if you would like managers in your business to be able to directly consider the interests of all stakeholders, you can form a public-benefic corporation (PBC). Other than being permitted or required to directly consider the interests of all of their stakeholders, PBCs operate much like conventional for-profit corporations. For more on PBCs and why you may wish to form one, see the section below on Defining Your Purpose & Mission and the articles titled: Public Benefit LLCs in Colorado: Is a Purpose-Driven Business Right for You? and Colorado Corporations: To PBC or Not To PBC?.
Colorado is also a great state to form a cooperative association (or "cooperative"). There are several kinds of cooperatives that can be formed, owned in various ways, but generally cooperatives are more democratic structures where (at least major) decision making is decided on a one-vote-per-owner basis. As a result, these owners directly participate in the management of the business, but their "say" in the business decisions is generally not determined by their share of ownership.
However, owners do not need to directly participate in all decisions, and cooperatives can be structured with boards to oversee day-to-day operations.
A business's management structure determines not just who gets to make its everyday decisions, but also about who can act as its agent. When the owners of a business are not (by virtue of their ownership) its managers, they are not the agents of the business.
An agent of your business is legally allowed to act for your business and to legally bind and obligate your business. Whether owners directly possess this authority can matter a lot, esp. if you don't want anyone and everyone who might invest in your business to be able to take out a line of credit in its name. In the wrong hands, this power and authority can create serious and perhaps insurmountable difficulties for your business.
Who has the authority to bind your business is important not because of that actual authority, but also because of the apparent authority it creates. In a corporation, for example, a shareholder cannot take out a loan for the business; they lack the authority to do so. An officer, however, may be able to do so.
Apparent authority arises when someone who actually lacks the authority to obligate your business, reasonably seems to a third party to have that authority. In that case, they may be able to bind your business without any actual authority to do so. For a more complete discussion of apparent authority and its dangers, see Understanding Apparent Authority: How an Unauthorized Partner Can Bind Your Business.
If you would like advice or assistance in choosing the right entity or entities for your business or with preparing the required documents for filing, please Reach out, Today!
At the same time that you're thinking about the right entity for your business, it is a good idea to think about how you would like your business taxed. Do you want it to be taxed separately from you? What advantages might there be in doing so (or not)? Do you want the flexibility to elect a different your tax treatment (without restructuring your entity at the state level) as your business grows or your needs change?
The type of entity that you choose for your business also determines the options you have regarding the income tax return form that you will have to file. Partnerships and sole proprietorships each have only one possible type of tax treatment. LLCs, as will be explained, have the ability to select among several, and corporations may be able to choose between a couple.
While there are many different types of entities, there are primarily five different tax treatment options: disregarded entities, pass-through entities (partnerships), C-corporations, S-corporations, and cooperatives.
Disregarded entities are ignored for income tax purposes and, as a result, their owners are taxed only as individuals and all business income, gains, losses, and deductions are included on their personal income tax returns.
Disregarded entities, unlike pass-through entities, do not have to file an entity-level report with the IRS. Sole proprietorships are disregarded entities and single-member LLCs are too, at least by default.
Pass-through entities are taxed under subchapter K and must file an annual information (IRS Form 1065) to report the income of the business, but do not pay taxes at the entity level. Instead, the income (or losses) of the business "pass-through" to the individual owners who are taxed only on their personal income tax returns. Partnerships are pass-through entities and LLCs with more than one owner, at least by default, are as well.
C-corporations, on the other hand, are taxed at the entity level and its owners are also taxed based on the income they receive from the business. This is sometimes referred to as "double-taxation" since the entity first pays taxes at the corporate level based on its income, and then the individual owners also pay personal income tax based on the income they personally receive from the business. For-profit corporations, public-benefit corporations, cooperatives, and limited cooperative associations are all taxed as C-corps, by default. LLCs can elect to be taxed as a C-corp by filing IRS Form 8832. For more information about making this election, visit About Form 8832, Entity Classification Election.
Because entities taxed as C-Corps are taxed at the entity level, the owners or shareholders cannot deduct any losses of the business. But they are also entitled to tax special deductions not available to other entities, including the ability to deduct employee health insurance costs.
S-corporations: Entities that are or can elected to be taxed as corporations, may be able to elect to be taxed as S-corporations instead of C-corporations. By electing to be taxed as an S-corp, the business is not taxed at the entity level, but instead is treated as a "pass-through" entity, much like a partnership. This allows the entity to avoid double taxation, but there are certain requirements that must be met in order for an entity to be able to elect to be taxed as an S-corp. These requirements are discussed more fully in the section on S-corps on the corporations page. Depending on the net income of your business, being taxed as an S-corp may also allow you to save on self-employment taxes.
To elect to be taxed as an S-Corp, you need to file IRS Form 2553. For more information about making this election, visit About Form 2553, Election by a Small Business Corporation. An LLC no longer needs to file Form 8832 before filing Form 2553 in order to be taxed as an S-corp.
Cooperatives are taxed under subchapter T, by default, which provides certain tax advantages such as the ability to deduct qualified patronage dividends from taxable income. Under subchapter T, patronage income (but not losses) "pass-through" to individual owners ("patrons"), while non-patronage income is taxed at the entity level like an ordinary C-corp.
LLCs are the most flexible entity when it comes to possible tax treatment. An LLC depending on the number of members is, by default, taxed as a partnership (for LLCs with more than one owner) or is treated as a disregarded entity (for LLCs with only a single owner). (But for the purposes of employment and certain excise taxes, even a single-member LLC is treated as a separate taxable entity.)
However, any LLC may elect to be taxed as either a C-corp or an S-corp (so long as the requirements for making the S-corp election are met). However, while the "check the box" regulations make it easy to change tax treatment, it is important to note that there may be tax consequences for doing so. So, be sure to consult an experienced professional before changing the tax election of your business.
Once you've considered the sort of business structure that's best for your business, you should make sure that the structure fits well with the purpose or mission of your business. When defining your purpose or mission, there are many you may wish to consult from family members, to marketing professionals, to spiritual gurus, but you may also wish to seek the advice of experienced legal counsel.
Advice from a qualified business attorney can help you refine your mission or purpose, whether that purpose is as simply as bringing a new and innovative product to market or taking a commonplace product or service and delivering it in a way that no one has before.
Not every business needs a robust mission or purpose. But, for others, their mission is a north star that guides the majority of their business decisions.
Perhaps your business means more to you than you at first realize. It is worth taking some time at the outset to reflect upon what you hope to get out of your business and what you hope it can accomplish.
A mission statement and a few company policies may be enough to protect the purpose or mission of your business. But other businesses should have their purposes locked into their foundational and governing documents. That's where a qualified business attorney can help the most.
Social enterprise is a rapidly growing field as startups and existing businesses alike are increasingly locking in a social mission in addition to the pursuit of company profits.
These social entrepreneurs seek to use their businesses as a force for good, simultaneously fulfilling both business and philanthropic goals. For these businesses, it is particularly important to make sure their foundational and governing documents are drafted properly so as to lock in their specific purposes and missions.
While these conscious entrepreneurs are generally familiar with public benefit corporations (PBCs), most entities can be organized and operated as social enterprises as long as their social purposes and missions are embedded into governing documents and agreements. Pote Law Firm, for example, is an LLC that operates as a mission-oriented, public-benefit business.
Some questions to consider, include:
Why are you creating this business, not another?
Who are you trying to help?
Why are you trying to help these people, not others?
How will your business go about helping them?
How will your business add value to its customers?
What impact will your business have on its community?
What does success for your business look like? and
Why are you the right person for the job?
If your mission requires you to form and operate a public benefit business, properly structuring your business at the outset is particularly important as this structure not only orients the company's mission but also protect the decisions of management. For example, structuring your business as a PBC instead of a conventional for-profit corporation permits the directors and officers to consider the effects of corporate decisions on all stakeholders equally, not just shareholders in that corporation.
For more on why you may wish to create a public benefit business, see the articles titled: Public Benefit LLCs in Colorado: Is a Purpose-Driven Business Right for You? and Colorado Corporations: To PBC or Not To PBC?.
Finally, you should also think about narrowing your business's purpose, if you intend to limit the ability of members or partners to compete with the business and activities of your new company. This can be an important area to address in your ownership agreement.
The Pote Law Firm works with small business owners to help them properly organize and structure their business, including locking in specific purposes or missions. If you need advice or assistance related to defining your mission or incorporating that mission into documents or agreements, please Reach out, Today!
So you've settled on an available business name, picked the entity best suited to your business, and defined your business purpose and mission. Now, you're ready to file with the Secretary of State, right? Not so fast! You should still think about how all of the owners, including you, understand the business and what is expected from its owners and managers.
It is great to have picked an entity and weighed the pros and cons of that particular type against others, but you should take time to work out an arrangement between or among the owners to discuss contributions to the business, compensation from the business, restrictions on transfers, rights of third parties, and the unpleasantries related to death, disability, dissolution and insolvency.
How close do you want to keep your business? How important is it to be able to raise additional capital from either the owners or outside investors? When and how will you or other owners be able to receive money from or take money out of the business? How should you deal with disputes or deadlock?
One way or another, these questions are answered. Without an explicit agreement or where an agreement is silent, the business' structure and the rights and obligations of partners will be governed by statutory default rules. In these cases, the default rules will establish the structure, roles and, duties of the owners and managers of the business.
Generally, however, it is better for a business to be able to tailor these rules to the specific needs and circumstances of that business. Moreover, it is always important for the owners of a business to understand these rules so as to preserve the separateness of the entity they have formed. Otherwise, the entity may be disregarded and the owners may be exposed to business liabilities.
Working out the understanding among owners with respect to important matters ahead of time can make a big difference to the long term success of a new business. These matters determine how the business receives or acquires additional capital, how new owners join the business, and even whether the business will continue when an owner passes away or withdraws.
Often owners have quite a bit of flexibility here. And the expression that an ounce of prevention is worth a pound of cure certain holds true here. A well-crafted ownership agreement allows the owners of a business to work out answers to these questions in advance so as to avoid costly disagreements down the road.
For example, by default, there are no restrictions the free transfer of the membership interests, units or shares of Colorado LLCs. However, an ownership ("operating") agreement allows the members of an LLC to define any limitations or restrictions in accordance with their accepted understanding.
LLCs in particular grant their owners ("members") considerable freedom in fashioning an arrangement among then as they see fit. In fact, LLCs can be structured so that their ownership and management operate like any of the other entities, whether a corporation, partnership, cooperative, or sole proprietorship.
In any case, this arrangement is created by developing an ownership agreement that is fashioned to the needs and circumstances of that particular business - as well as its owners and other stakeholders. When properly developed and followed, a well-drafted ownership agreement promotes the growth of the business, while protecting its owners in the event that difficulties arise.
For more information on general considerations relevant to ownership agreements as well as specific issues for particular types of ownership agreements, see the page on ownership agreements. If you need assistance with drafting, reviewing, or revising an ownership agreement, Reach out, Today!
Now - but only now - is it time to head to the Secretary of State website - or have your attorney do so for you. (Note: general partnerships and sole proprietorships do not need to be registered unless they operate under a tradename or DBA.) But where should you form your business? What state is the right state for you and your business?
For prospective businesses with stores or offices in only one state, the right state generally to register your entity is the state with those stores or offices. In most cases, a business formed in another state, will still need to qualify to do business in Colorado, requiring additional time and paperwork. This process of qualifying an entity to do business in a state other than where it was formed is called Foreign Qualification.
When more than one state is a reasonable option as the state of formation, it will be necessary to do a bit of a cost-benefit analysis, weighing the asset protection, taxation, and relative privacy of each state against the filing fees and paperwork requirements.
Keep in mind too that where a business intends to operate in more than one state, it may be necessary to qualify the business in other states. An experienced attorney can help you determine where or whether your business should be registered or qualified to do business in a particular state.
If you haven't already done so, you or your attorney should search the Secretary of State's business search and determine that the name you have chosen is available.
If the name is available, you can now form that entity with the Secretary of State by filing the relevant document. If privacy is important to you, you should consult with an experienced business attorney and have that attorney file this document. Otherwise, you will likely have to provide a personal address that will become part of a public record. Furthermore, this original document will remain on the Secretary of State's website even if amended or otherwise modified or restated.
But by having a business address, registered agent, and an experienced attorney register your business, you can keep the home address of any owner off this public record.
Moreover, there are important questions unique to each type of entity to consider when registering your business. Please refer to the page specific to that particular entity for answers to these entity-specific questions. Some of these questions can be tricky without assistance from experienced counsel, such as whether an LLC should be formed as manager or member managed.
The Pote Law Firm works with small business owners to help them properly register their business while protecting their privacy. If you need assistance, please Reach out, Today!
After your business has been registered by filing the appropriate document, the next step is to get your tax IDs and bank accounts all set up - in that order.
Promptly after your business is formed, you should obtain a federal employer identification number (EIN) from the IRS - even if your business does not intend to hire any employees.
Even when it is not required, it is a good idea for a business to get an EIN anyway. Doing so will allow the business owner(s) to avoid using a personal social security number (SSN) when opening bank accounts or lines of credit, or for use in connection with background checks related to taking out leases or entering certain other contracts.
An EIN is also often asked for when applying for business licenses and permits. (Licenses and permits are discussed more fully in the following section.)
Getting an EIN is a completely free and relatively simple process, involving only a handful of questions most of which you have already answered if you've gone through the steps above.
Since it is an employer ID number, there will also be a couple questions about how many employees you see your business hiring in the first year and when you plan on making the first hire. But you don't have to actually intend to employ anyone to get your EIN.
You should only get an EIN for your business directly from the IRS. And you should only begin this quick process during its hours of operation: Monday to Friday, 7 a.m. to 10 p.m. Eastern Standard Time.
Some questions you can expect, include:
What type of entity have you formed?
What is your principal business address?
What is your SSN or ITIN?
When will you first hire an employee?
How many employees will you hire this year?
What is the name of the owner? and
What kind of business does your business do?
Keep in mind that you will need a valid SSN or Individual Taxpayer Identification Number (ITIN) in order to begin the process of obtaining an EIN. If you do not have either a valid SSN or ITIN, you will need to apply for one with the IRS. More information about applying for an ITIN can be found here. However, you will want to plan ahead, since it can take several weeks to receive your ITIN from the IRS.
So long as everything is working correctly on the IRS site, you will receive your EIN as soon as you complete all of the questions. (In the rare event that things are not functioning correctly, you'll have to wait for your EIN to be mailed to you.)
Note: Information related to obtaining a Colorado state sales tax number and city or county sales tax licenses may be found in the following section on Getting Licenses and Permits. And if you plan on getting an EIN, you should get it before getting any state or local tax numbers or licenses.
To learn more about federal and state tax ID numbers, please see SBA: Get Federal and State Tax ID Numbers.
Once you have your EIN, you should head to your favorite bank or credit union in order to open accounts for your business.
All businesses should have at least an operating (checking) account to be used exclusively for business purposes. Doing so will allow you to properly segregate business and personal funds, which is particularly important for any entity that offers liability protection to its owners.
Simply setting up a separate bank account can go a long way towards protecting your personal assets. Failing to keep your business and personal funds separate greatly increases the odds that your entity will be disregarded in a court or similar proceeding in the event that your business cannot satisfy all of its obligations or liabilities.
If your business's "veil" is pierced in this way, your personal assets may be seized by creditors or other third parties to whom your business owes a debt.
If you've taken the time to go through the first six steps above to establish an LLC, corporation or other limited liability entity, don't miss this important step for protecting your personal assets. In additional to asset protection, establishing separate bank accounts will also help your business with its bookkeeping, accounting, and tax preparation.
Moreover, it is always a good idea to establish a working relationship with at least one financial institution as soon as possible. The bank or credit union you use for your business accounts may also be able to help you with credit cards, lines of credit, or other loans to help finance your business in its early stages.
If you need help getting an EIN or other Tax ID, please Reach out, Today!
When it comes to business licenses and permits, the type and location of your business will largely determine whether and what it is required to obtain.
In general, service-oriented businesses do not need to apply for Colorado sales tax numbers. But even for Colorado service businesses, it is best to consult with an experienced attorney to make sure you are complying with federal, state and local regulations. For example, some cities in Colorado (e.g. Aurora, Denver, Glenwood, Greenwood Village, and Sheridan) have an "occupational privilege tax" that applies to service businesses operating in those cities.
In Colorado, if your business is involved in selling goods, whether retail or wholesale, you will need to obtain at least a Colorado sales tax license. The application form can be found here. This form is used obtain a state tax identification number for any of the state taxes associated with your business.
Your city or county may also require their own licenses or registrations. For example, the City and County of Denver has its own sales and use tax license, applying for which will require not only your EIN but also your Colorado state sales tax number. Denver's eBix Tax Center provides an online option to register your city tax license.
Wage withholding taxes are another common tax that requires businesses required to withhold Colorado income tax for their employees or contractors to apply with the Colorado Department of Revenue in order to open a withholding tax account.
This account is free and has no renewal requirements. So once your application is accepted, you simply need to make sure your payroll is processed so as to make the proper withholdings. Visit How to Apply for a Withholding License for more information.
These are just a few taxes that may apply to your business. There are, depending on your business, others like excise taxes that apply to particular goods or services. Visit Department of Revenue - Taxation Division for more information about Colorado state taxes.
In addition to state and local taxation, you may need to obtain other licenses or permits in order to lawfully operate your business. In Colorado and its cities and counties, there is no general business license required to do business for entities formed in the state ("domestic entities"). But entities formed out of state will be required to qualify to do business in the state - a process called foreign qualification.
Additionally, although there is no required general license, there may be state or local licenses that are specific to the type of business or occupation.
Furthermore, local governments may require a business to obtain certain permits to operate in their jurisdiction. There may be building, zoning or even signage permits that a business must obtain to operate lawfully.
Permits may also be required to operate certain sorts of businesses. Marijuana, liquor, and tobacco are all examples of highly regulated businesses that require permits to lawfully operate that type of business. But health services and even plumbing are also services that require permits to practice. Visit the Department of Revenue - Enforcement Division for more information.
MyBizColorado is a useful place to start if you have questions about your state or local taxes, as well as whether you are required to obtain any licenses or permits. You can find additional information from the Small Business Administration. For more information on federal licenses and permits, please see SBA: Apply for Licenses and Permits.
If you have questions or need any assistance getting licenses or permits for your business, please Reach out, Today!
Regardless of your type of business, you have at least some intellectual property - whether you created it or you are using something created by another. Intellectual property includes various categories of property that are produced by the human intellect, and some countries recognize more categories than others. For many new businesses, intellectual property may be their most valuable assets.
The categories that primarily concern us here are: trademarks, trade dress, copyrights, patents, and trade secrets. If you are using or developing property that falls into any of these categories you need to make sure that your rights are secure and that your property is protected.
Every business has a name, and this name is the first place to start when thinking about your intellectual property. If you've gone through the previous steps, you have already searched the USPTO's Trademark Electronic Search System (TESS) to make sure that another registered mark is not already using your chosen business name.
Since you've made sure you're not infringing the rights of another, you should consider - and perhaps consult with an attorney - to see whether you need the benefits that come with registering your business name as a trademark with the USPTO or the Secretary of State.
Just by using your business name, you likely have some trademark rights in the area where you operate. But registering that name will put every business across the country on notice that you have nation-wide rights to use that name in connection with your products or services.
(Technically, marks associated with services are "service marks." But this has become a seldom used term and generally marks for goods or services are both referred to as trademarks. It's the USPTO, not the USPTSMO.)
Would you be bothered if a business in a neighboring state or town that sold very similar products or services started using a name that was very much like yours? What if your customers started visiting that business thinking that they were associated with yours?
The purpose of trademark law is to prevent consumer confusion of this sort. And registering your mark will help protect you from precisely this situation. (Additionally, simply the attempt to register a mark may allow you to determine whether the mark is protectable in anyway, whether registered or unregistered.)
Similar remarks apply to names for any of your business's products or product lines. Any of these may also be an important brand for your business that hopefully differentiates your products from those of your competitors.
As a result, you may want to look into registering these brand names - as well as any logos or slogans that are important to your business - with the USPTO or your state. The Lanham Act is the primary federal trademark law and it protects trademarks from various acts including infringement, dilution, and false advertising.
However, a mark must not be too descriptive, too confusingly similar to an existing mark, or prohibited for any other reason in order to be registered in the Principal Register. But some marks that cannot be registered in the Principal Register may still be able to be registered in the Supplemental Register, which though not providing the same protection still provides addition benefits over unregistered marks.
Furthermore, if you have had another person design your logo or anything else you want to trademark, you need to make sure that your agreement with that person provides you with the rights not only to print or use that logo, but also to register it as your own intellectual property. A solid assignment or "work for hire" provision in a service agreement is important to make sure you're getting all of the rights your business needs.
Not every logo, slogan, business name or other mark will be registrable with the USPTO. For more information, two articles on this site discuss trademark registration in greater detail. Please see Using Trademarks to Protect Your Brand: How to Create a Strong Mark and Registering Immoral or Scandalous Trademarks after the FUCT Decision.
More information about trademarks is also available on the Trademarks & Copyrights page.
Trade dress generally refers to the visual appearance of a product or its packaging and may include even the design of a store or building. Think, for example, about the way certain restaurant chains use the same colors, architectural features, patterns or designs in all of their restaurant locations. Or think about how the packaging of certain pastas or toys in a product line all share certain characteristics. That's trade dress.
Like trademarks, trade dress can be registered with the USPTO and, similarly, registration provides additional benefits and protections over and above the rights that the owner of a particular trade dress would have otherwise. However, trade dress can be more challenging to protect than trademarks, since any characteristic of alleged trade dress that is "functional" cannot be protected through registration.
Moreover, trade dress is less likely to be considered an "indicator of source" - that is, it is less likely to suggest to consumers that a product or service is provided by a particular business. Unless a particular dress begins to indicate to consumers the source of certain products or services, it will not be protected by the Lanham Act, governing both trademarks and trade dress.
Copyright is another category of intellectual property important to many entrepreneurs, creative folks, and small business owners. Unlike trademarks which are about using some word, phrase, image or even sound in commerce, copyrights do not have to be used in commerce to be protected.
Instead, copyrights emerge when an original work of authorship is fixed into a tangible medium. So to be protected under copyright law, a work must be both original and fixed.
Registering the work with the U.S. Copyright Office is not required in order to have copyrights in a work. But, as with trademarks, registering a work provides additional benefits and protection.
Registering your copyrights in a work (i) provides the ability to generally get considerably greater damages - "statutory damages" instead of just actual damages - in the event of infringement, (ii) places the world on notice that you're the owner of the work, and (iii) preserves a copy of the work in the Library of Congress. That's pretty cool, right?
Your website, videos, photographs, logos, drawings and other images all may be entitled to copyright protection so long as they are sufficiently original. And depending on your type of business, you may have many other kinds of copyrightable works.
If you are having another person or business create any of these for you, you may want to carefully consider your agreement to make sure you're not simply allowed to use what they give you, but allowed to distribute, modify, register and reproduce that work in the same or other contexts.
As with trademarks, the best way to get the rights you need is to have the work created as a "work for hire." (This is unnecessary if the work is created by your employees, as such work is already deemed created by your business unless a contract provides otherwise.) If your business will not be (deemed) the original author, you'll want to make sure your assignment or license is granting you all of the rights you need in the work for your business.
Since copyrights can be "broken up," there may be various rights holders that matter to forming a binding agreement. As a result, it is best to consult an experienced attorney when working out any contract involving copyrights.
More information about copyrights is available on the Trademarks & Copyrights page.
While copyrights protect original (creative) works, patents protect novel inventions. Like both trademark rights and copyrights, an inventor automatically has rights in his invention without having to seek or obtain a patent. However, these rights do not include exclusivity, i.e. the right that no one else be able to make, use, or sell the invention.
As a result, patenting an invention is important to make sure that no one else starts profiting from your idea. Without exclusivity, big businesses, with their abundant capital, may be able to easily replicate the idea and dominate the market before the sole entrepreneur or smaller business can scale their product.
A qualified patent attorney should preferably have an extensive science background and have passed a special patent exam. For these reason, it is preferable to work with an experienced attorney who focuses exclusively on this area of law. Pote Law Firm does not practice patent law, but may be able to connect you with an attorney who does.
Trade secrets are very different from the other categories of IP in that they are meant not to be shared, disclosed, published or otherwise provided or sold to the public. Instead, their value lies precisely in the fact that they are not publicly known or available. The recipe for Coca-Cola is a commonly mentioned example, but trade secrets could relate to pretty much anything from how you manufacture your shirts or serums to how you fry your chicken or brussel sprouts.
Many things can count as a trade secret. Formulas, processes, designs, methods, or even combinations of these things can be a trade secret so long as (i) they remain secret (i.e. not known to others outside of confidentiality) and (ii) they provide an economic or business advantage.
Like trademarks, trade secrets are a distinctly commercial form of IP and can be an important business asset that gives one business a distinct advantage over its competitors.
Since they must remain secret in order to provide this advantage, it is important to safeguard your trade secrets properly. This includes various possible things from physical measures (e.g. locks on doors or draws) to having security policies or non-disclosure or confidentiality agreements in place with anyone who may have access to your trade secrets.
If you think you have developed something that gives - or even could give - your business a distinct advantage, there is no harm treating it as a trade secret. In fact, the risk is that you do not recognize it as valuable to your business as soon as you should. Once the information gets out, you cannot put that genie back into the bottle.
The Pote Law Firm works with small business owners to help them properly protect their IP and to draft or revise related agreements. If you need assistance, please Reach out, Today!
You've made it this far and it's now time to consider your business contracts and policies. We've touched on this topic already in discussing assignments, licenses and non-disclosure agreements (NDAs) in the previous section. But at this stage, you should be thinking about the sorts of contracts, contract templates, and policies that your business needs to get up and running.
Some of these can come down the road. But some you'll need before you're operational. It simply depends on your particular business and its needs. There is no formula or one-size-fits-all advice when it comes to the agreements, policies and other documents your business requires or would benefit from.
Contract needs vary considerably among different business. Maybe you have one key supplier or purchaser with whom you need an agreement worked out. Maybe you'll have various employees or contractors.
As discussed above, you may need rights in certain intellectual property like trademarks or copyrights. Or maybe you need NDAs to protect proprietary or sensitive information that your business is sharing with others.
Your contracts will make sure you're getting the rights that you need without obliging you or your business unnecessarily. Whether you need contracts or templates, it is best to consult with an experienced attorney who can provide you with agreements or forms tailored to your business's particular needs and circumstances.
Moreover, while contracts can often be formed without written agreement, having a signed, written agreement not only ensures that both sides understand the terms, but also makes the process simpler if you need to enforce your rights down the road.
Whether you need vendor, service, or independent contractor agreements, you should have those agreements drafted in writing by a qualified attorney.
If your business enters repeatedly into the same or similar agreements, you may want to consider having a contract template instead of a single agreement. Contract templates can be used for various agreements from NDAs to employment or independent contract agreements, and they can help save considerable time and expense.
Another important type of contract for many businesses is an insurance contract. Insurance contracts formalize the agreement between you and your insurance provider. These agreements can be for various sorts of insurance coverage and it is important to consider not only the payment and premium, but also precisely what claims for loss are covered and what sort of exclusions are involved. Insurance policies are often a good idea even for a limited liability entity particularly if that policy will cover any necessary litigation expenses.
Most businesses should at least consider getting general liability insurance which will help protect your business from losses resulting from property damage, bodily injury, and other harms or damage. Product liability, workers compensation, malpractice, and automobile insurance policies may also be good choices depending on the activities of your business.
It is important to review any insurance contract carefully and negotiate where necessary to make sure it covers and does not exclude the activities or situations that matter most to your business. For more information about business insurance, please see SBA: Get Business Insurance.
Terms are essentially contracts that are formed between your business and the users of your website, mobile app, or other products. They allow your business to express the terms and conditions on which a website, app, or product is made available to its users.
As a result, Terms are governed by contract law generally. This gives businesses considerable flexibility when it comes to drafting Terms. But the application of contract law to Terms has some unique challenges, specifically whether any such user should have been aware that their use was governed by your Terms and whether they have adequately indicated their acceptance of those Terms.
For this reason, the enforceability of a business's Terms often depends much less on what the Terms require and much more on their method or manner of presentation. For example, are users presented with the Terms and required to take an affirmative action to accept those Terms?
Creating enforceable Terms is your business's chance to protect itself from some of the risks created by customers, users, or others. And when well-drafted and designed, these Terms can go a long way to protecting business and personal assets.
Spend a little time on the internet or looking for mobile apps and you'll quickly notice that there are various ways to present Terms to users, and not all of them are equally good. Ideally the Terms should be prominently displayed any user or at least conspicuously hyperlinked, and the user should have to agree to be bound by those Terms.
To learn more about how to properly implement your Terms, please see Creating Enforceable Internet Agreements: Web Design for Proper Notice and Acceptance. And if you need help creating terms or analyzing risks specific to your business, please Reach out, Today!
Regarding a data-security policy, every business that collects certain personal information from Colorado residents - whether that information is stored digitally or only on paper - is required to have a policy in place that details how that information is secured and what steps will be taken in the event of a security incident or breach. Both the security measures and incident responses must be reasonable, given the size and resources of the business.
Privacy policies are also important for any business with an online presence.
Whereas a security policy is generally an internal company document, privacy policies are often required to be presented to be public so as to provide notice to the potential customers of that business as to how the business collects, uses, or shares information from its customers.
There are many other polices that your business may need. If you have employees, you should also have policies related to your handling of certain situations with those employees, from disputes and complaints, to promotion or termination. Often these policies are presented in an employee handbook so as to easily provide this information to both new and other employees. Generally this handbook is distinct from any employee contract, but it may still be a good idea to have an employee sign an acknowledgement of policies contained within.
Depending on your business and its goals, you may also wish to have policies related to your purchasing decisions, hiring decisions, environmental impact, stakeholder engagement, employee travel, grievance reporting or community service. If your business is interested in B Corp certification, many of these policies if drafted well will help you improve your chances of qualifying. Even if you're not, they may help boost the reputation of your business, which could attract not only customers, but high-quality employees and investors.
For more information about data-security, privacy or other company policies, please see the page on Business Contracts, Terms, & Policies. If you need help developing any policies or determining what your policy needs are, please Reach out, Today!
Congratulations for making it to the end. Although there are no guarantees of success in the business world, if you've gone through these steps your business will be much better for it. Hopefully you'll see great prosperity and your business contributes much of value to the world.
More information will be added here from time to time, and a refresher is generally helpful. So, please stop by from time to time to review these steps and the information presented here. And, of course, if you need any assistance with these matters, please Reach out, Today!