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SELECTION OF A CORPORATE BUSINESS STRUCTURE

BINOY CHACKO 
on 06 July 2009

LinkedIn


SELECTION OF A CORPORATE BUSINESS STRUCTURE
If you are new entrepreneur looking of doing a business in a corporate form of organisation, first you have to select a form of business organisation. There are four types of Corporate Business Forms available for entrepreneurs carrying business in India:
  • Private Companies
  • Public Companies
  • Limited Liability Partnerships
Selection of the appropriate form for your business depends on many factors such as the type of business, the number of persons involved, whether you want full control or prefer to share responsibilities, capital requirements, tax regulations and business liability.
If you feel the situation is not simple, consult CompaniesInn about the legal aspects of your plans and about financial implications.
PRIVATE COMPANIES
Private Limited Company is formed with minimum of 2 members and 2 Directors. Maximum number of members in a private company is restricted to 50. There are restrictions for availing loans and deposits from people other than members and Directors. The name of the company shall end with the words 'Private Limited'.
PUBLIC COMPANY
Public company is a company which is not a private company. The minimum number of shareholders ands directors required for registering a Public Company is 7 and 3 respectively. Subject to compliance of the Companies Act, there is no restriction as to number of members, issue and transfer of shares and acceptance of deposits. This type of company can not invite public to subscribe shares in the capital of the company. Also acceptance of deposit from the public also strictly regulated. Usually public companies are formed by large business houses. A private company can be converted into a public company. 
LIMITED LIABILITY PARTNERSHIP (LLP)
LLP is a new corporate business form in India. A Limited Liability Partnership combines the advantages of both the Company and Partnership into a single form of organization. This business form is going to be the future organization structure available to small business, start ups and service industries.
An LLP can be formed by two partners and 2 designated partners. There is no restriction for maximum number of partners in LLP  
When making a decision about the type of business to form, there are several other criteria you need to evaluate. Analyse the following points carefully before taking proper decision.
A.    Legal liability
To what extent does the business owner needs to be insulated from legal liability? Majority of people approaching CompaniesInn for registration of business organistaion prefer corporate structure of business as liability of members is limited to the share/contribution to the company/LLP.

Private Limited/ Public Limited
LLP
Liability of shareholders is limited to the value of shares taken in the company. Therefore the personal assets of shareholders are free from the liabilities of the company.
Liability of partners of a LLP is limited to his contribution. Their personal assets are free from the liabilities of LLP. However, if LLP has committed a fraud or a willful misconduct, the liability of LLP and partners committed fraud become unlimited.

B.     Perpetual Succession
Business Dictionary defines perpetual succession as continuation of an incorporated firm's existence, unaffected by the death of any of its owner(s) or the transfer of its shares to a new entity or person. This is the main feature of a corporate business form whether it is a company or LLP

Situation
Private Limited/ Public Limited
LLP
Death of a shareholder / partner
 
Company will continue and his shares will be transmitted to his legal heirs.
 
LLP will continue with other partners. Legal heirs of LLP will get share of profit/contribution of the deceased partner. They are not entitled to become a partner of the LLP. LLP agreement can provide a clause enabling legal heirs to become a partner of LLP. 
Transfer of Shares / Partner’s interest.
 
 
Shares in a company are freely transferable. In Private companies, transfers can be regulated by articles of the company.
A partner can transfer his share of profit/loss in an LLP wholly or part. Such transfers shall always governed by LLP agreement.

C.    Tax implications
Based on the individual situation and goals of the business owner, what are the opportunities to minimize taxation?
There are many tax saving options available to corporations compared to proprietorship concerns or partnerships. Double taxation is a common disadvantage often associated with incorporation a company as the company has to pay tax on its profit and tax on distributed profit as well.
In case of taxation of LLP is concerned, there is a possibility of taxation as partnership. If the situation is this, the disadvantages of double taxation also get removed.
D.    Cost of formation and ongoing administration.
Cost of formation and ongoing administration is another criteria to determine form of Business Structure. This cost includes cost of record-keeping and paperwork, as well as the costs associated with incorporation.

Situation
Private Limited
Public Limited
LLP
Cost of incorporation
Higher than LLP
Higher than LLP / Private Limited
Cheap
Compliance of law
 
Less compared to LLP
Strict than Private Limited
Lees than company as management of LLP is governed by LLP agreement
Audit
 
Need to appoint auditor irrespective of size of the company
Need to appoint auditor irrespective of size of the company
Only apply if turnover INR 4000000 or above or contribution INR 2500000 or above
Record Keeping
 
Extensive record keeping compared to LLP 
Strict and Extensive record keeping compared to LLP & Private Limited
Statutory records are basically limited to books of accounts. Others records keeping are   governed by LLP agreement

E.      Flexibility.
Your goal is to maximize the flexibility of the ownership structure by considering the unique needs of the business as well as the personal needs of the owner or owners. Individual needs are a critical consideration. No two business situations will be the same, particularly when multiple owners are involved. No two people will have the same goals, concerns or personal financial situations.
 

Situation
Private Limited / Public Limited
LLP
Change of ownership
 
Company is most flexible form as share can be transferred freely.
Ownership transfer is governed by LLP agreement. Usually, it requires consent of all partners.
Management
 
Company is managed by Directors by taking decisions in Board Meeting. Companies Act & articles regulate management of a company
LLP agreement describes how to manage LLP. It can also be managed like a company subject to agreement. LLP agreement is the basic document regulating management of LLP. 
Capital
 
Capital of a company is sub divided into shares. Profit entitlement of based on the percentage of shareholding in the paid up capital of the company. Voting right also based on the shareholding
Capital of LLP is contribution from partner. The contribution can be cash, tangible, intangible assets and immovable properties etc. Profit share need not be based on contribution. Voting right also governed by LLP agreement

 
 
F.       Future needs
When you're first starting out in business, it's not uncommon to be "caught up in the moment." You're consumed with getting the business off the ground and usually aren't thinking of what the business might look like five or ten-let alone three-years down the road. What will happen to the business after you die? What if, after a few years, you decide to sell your part of a business? Corporate form of structure is the most suitable form of Business for future requirements as it enables the owners to bring capital, change the ownership, expansion, consolidation, merger with other firms etc.
 
G.    Reputation
Visibility and Brand, Capability to change with Time are the twin mantra of present business success. As corporate form have the advantage of separate personality from it members, you will get more acceptance from your clients, suppliers, financiers and customers.
 
If you are looking for more information, contact CompaniesInn
 
CompaniesInn.com India Private Limited
# 463, 10th Main | 13th Cross | Wilson Garden | Bangalore—560 027 | INDIA
Tel        : +91 80 4219 4109 / Mobile: +91 96633 29656
E-Mail : info@companiesinn.com
Web: www.companiesinn.com



Category Corporate Law
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BINOY CHACKO 

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