Small Businesses Bouncing Back

New hires, expansion, growing demand, increasing sales. According to this article in the Boston Globe last week, all signs are pointing to renewed growth for small businesses.

Sixty-five percent of all new jobs are created by small businesses, according to the Small Business Administration and have added almost 1.3 million jobs over the past year.

Although Hurricane Sandy was a disaster for Nassau County, Long Island and the surrounding areas, it has spurred on growth by small businesses tied to the housing market—home repairs, remodeling, landscaping. Nationally, home sales have reached their highest level in years.

Great news for all of us!

Do You Have Perfect Pitch?

The elevator speech, so named because you should be able to describe your business and get the listener to want to hear more in the time an elevator ride takes, is a skill every small business owner needs to know.

 

There are numerous articles on the internet about how to best craft a short statement.  One such article, How to Tell Your Business Story in 60 Seconds or Less, appeared last month on Enterpreneur.com.  The author suggests a four-step approach to your pitch, by answering the following questions:

 

1. What do you do?
2. What problem do you solve?
3. How is your product or service different?
4. Why should I care?

 

The elevator speech comes in handy at any networking opportunity–conferences, business meetings and casual conversation with everyone you meet.

S-Corp or C-Corp? What’s the Difference?

When you first form your corporation, it comes into existence as a C Corporation.  If you do nothing more, your corporation will remain a C Corporation.

 

A C Corporation becomes an S Corporation only when special tax treatment is sought by filing Form 2553 with the IRS.

http://www.irs.gov/pub/irs-pdf/f2553.pdf

Although a small business lawyer can advise you on the choice of entities, choosing whether to elect S Corporation status is best discussed with your accountant.  This is a tax decision, and a tax professional should review your entire financial picture before you make this decision.

New York State S Corporation Status

 

New York State also requires you file a form to be treated as an S Corporation under State Rules.  This form CT-6 Election by a Federal S Corporation to be Treated as a New York S Corporation.

 

http://www.tax.ny.gov/pdf/2007/fillin/corp/ct6_707_fill_in.pdf

New York City S Corporation Status

However, New York State does not exempt S Corporations from all NYS corporate taxes.  Again, you should check with your accountant prior to making this decision

Interestingly, New York City does not recognize S-Corp status at all. If your small business has income from New York City, you will need to pay New York City’s General Corporate Tax.

 

 http://www.nyc.gov/html/dof/html/business/business_tax_gct.shtml

 

 

Four Corners of a Contract, Demystified

What is the Four Corners Rule?


The “Four Corners Rule” states that if the language is not found within the written words of the contract, then outside evidence will not be considered.  This includes any oral agreement you’ve made.

How Does this Work?


So, for example, you’ve agreed to buy widgets from a manufacturer.  Your contract states that you will buy 100 widgets for $100, and the company must deliver those widgets to you within 30 days.  Before the 30 days is over, however, you find widgets for $80. You call the manufacturer to complain, or renegotiate, and the manufacturer verbally agrees to lower the price to $80.  Widgets delivered, you pay $80, and then you get sued for the remainder.  Your phone conversation will not change a written contract.  It can change an oral agreement, but not a written one.  If it is not written within the four corners of the contract, you lose.

Get it in Writing!!


Any renegotiation of any of the terms of a written contract must be in writing.

Long Island Small Businesses and the Onerous MTA Payroll Tax

I confess, I only incorporated my business this past year.  For a solo attorney such as myself, there aren’t as many reasons to incorporate as there are for other businesses.  I have malpractice insurance that covers most of my liability, and a corporation or LLC formation would offer little in the way of additional protection.  So, I was quite surprised when my accountant sent me a form and invoice for the MTA tax.

The tax is formally known as the Metropolitan Commuter Transportation Mobility Tax (MCTMT).  Besides the cost of paying the tax, there is no simple way of tacking on the tax to your other tax filings.  Aside from the usual federal and New York state tax forms, these additional forms must be filed quarterly.

This tax is imposed on certain employers and self-employed individuals engaging in business within the Metropolitan Commuter Transportation District (MCTD). Specifically, the tax applies to (1) employers required to withhold New York state income tax from employee wages and whose payroll expense exceeds $2,500 in any calendar quarter, and (2) individuals with net earnings from self-employment allocated to the MCTD that exceed $10,000 for the tax year (according to the Department of Taxation and Finance, this includes partners in partnerships and members of a limited liability company (LLC) treated as a partnership).

The small business owner cannot withhold any of the tax from the employee’s compensation.

The recently elected Governor Cuomo has come out  in opposition to this tax, calling it “onerous.”

Small businesses on Long Island pay $3.40 for every $1,000 of payroll. If you are a small Long Island business, you are probably not using the LIRR to commute, and your customers are probably not taking the MTA to see you.

This tax is burdensome to Long Island small businesses and is not proportional to their use of the MTA.

ASK THE CUSTOMER: WHY IS YOUR SMALL BUSINESS FAILING?

Why do so many small businesses fail?  According to this blog post, one of the main problems is that entrepreneurs themselves are the least likely to understand what has gone wrong with their businesses. As Jay Goltz opines, if business owners understood why their business was failing, they’d be able to fix it.

Some of the top ten problems:  operational inefficiencies, out of control growth, poor accounting and owners who cannot get out of their own way.

Check out Goltz’ Top Ten Reasons Why Small Businesses Fail and see if any of the top ten apply to your small business.

Small Business Assistance Bill to Spur Hiring

According to the NY Times, new legislation aimed at providing loans and tax breaks to small businesses is almost certain to pass the Senate this week.  The House is also expected to approve the bill quickly, while President Obama has already given it his strong support.

The new $30 billion lending program is designed to allow banks to make low-risk loans to small businesses with government backed financing.  Easier loans would allow small business the growth necessary to spur new hires.

Small Businesses Need Minutes of Meetings

Why Does a Small Corporation Need to Keep Minutes?

Corporate minutes are a reflection of the decisions of the Board of Directors.  Even more importantly, corporate minutes are an indication that formalities of the corporation are being kept.  If involved in a lawsuit, one way an attorney will attempt to reach personal assets of the officers of the corporation is to check to see if corporate formalities are followed.  One important type of formality is keeping records, or minutes of meetings.

Even if you are a single officer of a corporation, or you are a family business, or there are just two of you and the meetings are not formal affairs, you need to keep records of these informal meetings and decisions that are being made for your corporation.  Resolutions need to be drawn up ratifying those decisions that affect the life of the business.  Corporate minutes are among the most important documents a company must produce and keep.  Failing to keep accurate and complete minutes can expose officers and board members to personal liability.

What Should the Minutes Include?

There is no required format, but minutes should include all important decisions made for the company.

  • List all directors/members attending
  • Include a brief narrative description: What issues were discussed; what significant points raised; what actions taken
  • Include record of how each director/officer/trustee voted, including whether the vote was unanimous and if anyone abstained from voting

It is important to ratify and vote on the prior meeting’s minutes.  This ensures that each director had a clear understanding of the proposed actions.

What Needs to be Documented in your Minutes?

Is every item as important to record as all others?  Absolutely not.

The general rule is if the transaction is in the ordinary course of your business, the kind of transaction you engage in all the time, then there is no need to add those discussions to the minutes.  However, if the action is one that enables the business to engage in its business, the discussion of that action should be voted on and added to the written records.

Some major decisions that should appear in the minutes:

  • leases–for office space or equipment rental
  • significant contracts
  • elections of officers and directors
  • taking out loans or other kinds of financing
  • marketing and advertising campaigns
  • mergers, reorganizations or transactions involving the bulk of the corporation’s assets
  • providing employee benefits

LLC requirements

Although LLCs are generally not required by law to keep minutes or have formal meetings, a writing is always helpful in establishing that the members were in agreement on the actions that are taken.

Conclusion

Finally, if you keep your minutes on your computer, make sure you have a back-up.  Discard your notes since they are not a final accounting.  Minutes should be kept for at least seven years.

Operating your corporation properly by following state law allows you to focus your attention on running your business, and removes concerns about having to defend lawsuits and losing the limited liability protection that was your purpose for incorporating.

Your Family Small Business Succession Plan

When your business succession planning involves family, a whole new set of variables need to be thought about.

In some ways, it is easier when you have family to leave your business to, in other ways it can be way more difficult as you add family dynamics to the mix

First of all, some statistics: according to the Small Business Administration and researchers at Baylor University’s Institute for Family Business, only 30% of family businesses survive from one generation to the next, and even fewer to a third generation.  The mostly commonly given reason for this huge drop is the lack of a plan for an orderly succession.

If you own a family business, and would like to see your business survive  into the next generation, there are a few questions you should address:

  • Do your children or grandchildren want to take over your business?  It is never a good idea to insist your children take over the business.  You know how much hard work it is to make the business you love succeed, imagine if it was not a passion.
  • Is the interested family member qualified?  Has that family member worked in the business?  Learned skills at school or on the job?
  • If you have more than one child, there are other possibilities to consider.  More than one of your children may want to go into the business, but it is possible that some will not.   Many of us want to treat our children fairly when we leave our assets in our wills.  Can you treat your children fairly if leaving the business to one child?
  • If no family members want or are capable of running your business, do you want to hire management to run the business while retaining ownership, or does it make more sense to sell the business?

This is not a decision the business owner should make on his or her own.  The best thing to do is to sit down with your family and discuss it.

One of the most important aspects of family succession planning is estate planning.  If you are ready to start planning for the next generation, contact your Long Island small business lawyer soon.