At our firm, we’ve helped numerous cannabis startups navigate the complexities of choosing the right business entity. Because every startup is unique and has different goals and needs, a one-size-fits-all approach just won’t work. Below, I’ll explore some of the key considerations we focus on when finding the optimal entity type and structure for a cannabis venture.
The problem with sole proprietorships
Laypeople often mistakenly think that a business owned by a single person and a sole proprietorship are the same thing. Sole proprietorships, however, are generally unincorporated businesses. Imagine John Smith opens a lemonade stand and calls it John Smith Lemonade. It won’t be a separate legal entity unless he files a document with his state’s secretary of state.
Sole proprietorships like this completely miss out on “limited liability,” the hallmark of entities like corporations, limited liability companies (LLCs), limited liability partnerships (LLPs), and some other business types. Limited liability shields the owners of a business from the debts and liabilities of the business. In other words, an owner can’t be sued if the business breaches a contract or incurs another liability to a third party.
Without limited liability, a sole proprietor can be sued individually for the business’s conduct. In my sole proprietorship example above, that would be the case whether John Smith or one of his employees sold spoiled lemonade that made someone sick. Generally speaking, all of that goes away for business owners who form an entity offering limited liability (yes there are some exceptions for fraud and wrongful conduct, but those are the exceptions, not the norm).
With that in mind, I’ll talk about the two most common entity types we see in the cannabis space.
Corporations v. LLCs
Corporations have shareholders (owners) who elect directors to manage the big picture operations of the company. Directors hire officers to run the day-to-day affairs of the corporation. Depending on the state, there may be many different kinds of corporations. For example, California has general stock corporations, close corporations, and a host of non-profit corporations. All of them are different and may have different benefits for specific business types.
LLCs are much simpler. Where corporations have shareholders, directors, and officers, LLCs only have members (owners). They can (but don’t have to) appoint managers or even officers to run the business. But otherwise, LLC governance requirements are much simpler.
So the first big question for cannabis startups is how much governance they are prepared to deal with. Corporations can have a lot of benefits, but owners have to understand that they come with more governance baggage.
Which entity is better for taxation?
Corporations are taxed on their income at the federal corporate tax rate is 21%. Shareholders are then taxed on their dividends, if any are paid. This is known as “double taxation” and the “C-corporation” model. Corporations can also elect to be treated as “S-corporations” for tax purposes by making an election with the IRS within a certain timeframe. S-corporation taxation is similar to partnership taxation in many ways. However, S-corporations have many restrictions that make them impractical for some businesses.
Single member LLCs are “disregarded” for tax purposes. Multi-member LLCs are taxed on a pass-through basis (“partnership” taxation). This means that profits and losses of an LLC are treated as profits and losses of its members for tax purposes unless the LLC timely elects to have C-corporation taxation. [Note, there is also something called S-corporation taxation, which is similar to partnership taxation but outside the scope of this post.]
Despite “double taxation,” corporations may be the right entity for a cannabis business in some contexts. Here is an example of ours from a few years ago:
For example, a C corporation that earns $100,000 will pay tax of $21,000 ($100,000 *21%). If that same corporation dividends 100% of its earnings to shareholders, the maximum tax at the individual level is $23,800 ($100,000*23.8%). So the combined amount of tax is $44,800 ($21,000 + $23,800). In comparison, a partnership (or S corporation) results in less overall tax to the owners $37,000 ($100,000 *37%).
However, a C corporation is the preferred structure if the plan is to limit the amount of dividends paid to shareholders. For example the total tax hit to a C corporation and its shareholders that paid out dividends of $50,000 is: $32,900 [$21,000+ $11,900($50,000 * 23.8%)]. In this case, a C Corporation saves $4,100 of taxes compared to operating as a partnership. The C Corporation has the additional benefit of insulating shareholders/owners from personal liability for federal income tax.
On the other hand, partnership taxation can be ideal in some circumstances, such as:
The individual tax brackets of the LLC members are below 37%;
The individual member/partners qualify for the favorable 20% deduction for flow-through income under IRC section 199A;
The business plan emphasizes distributing cash to investors over reinvesting cash into the business (growth);
The business is not a retailer, and is able to claim a reasonable amount of costs of goods sold (COGS) in its tax reporting.
None of this is meant to be tax advice, but highlights some of the key challenges businesses face in making tax and entity type decisions.
How does the parent/subsidiary company model effect entity choice?
Many cannabis ventures are structured with separate operating companies owned by a single company. Generally speaking, the operating companies are LLCs due to simplicity of operation and pass-through taxation, whereas the “parent” is a C-corporation.
Corporations tend to be the better choice for raising equity and investments, which usually happens at the parent level. Institutional investors are more comfortable investing into corporations than LLCs, where they can secure director seats, define the classes of preferred or other equity they will get, etc. Not to say this can’t be done in an LLC, but the traditional C-corporation parent model tends to be the choice of most cannabis businesses.
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