Elizabeth Bowery

by Elizabeth Bowery

Beware of Business Opportunity Schemes: What Maryland Business Owners Need to Know

When setting out on a business venture, new business owners can be vulnerable to fraudulent schemes. One prevalent scheme involves the sale of a “business opportunity.” Scammers employ deceptive advertising and high-pressure sales tactics to peddle ostensibly low-risk, lucrative business opportunities and swindle their victims.

Under Maryland law, a “business opportunity” is defined as an arrangement between a seller and a buyer. In this arrangement, the seller solicits a prospective buyer to purchase products, equipment, supplies, or services to enable the prospective buyer to start a business. The prospective buyer is required to make a payment, and the seller represents, directly or indirectly, that it will help the prospective buyer make the business successful. For example, the seller may claim it will help the prospective buyer secure accounts or a prime location. Unfortunately, some of these offerings are fraudulent.

How the State of Maryland Has Taken Action

To combat this, the State of Maryland enacted a law to regulate the sale of business opportunities and fight against these deceptive practices. The Maryland Business Opportunity Sales Act sets forth several requirements for the seller of a business opportunity, including:

• registering the business opportunity with the state,
• providing the prospective buyer with a written disclosure statement at least ten business days before the prospective buyer executes a contract, and
• in some cases, such as when income is guaranteed, posting a surety bond with the state.

The Federal Trade Commission, the federal consumer protection agency, also addresses this issue with its Business Opportunity Rule. As a result, sellers of business opportunities operating in Maryland must comply with both state and federal requirements.

Protect Yourself From Fraudulent Business Opportunities

Despite these measures, sellers of fraudulent business opportunities continue to target unsuspecting, first-time business owners. Before committing to a business opportunity, consider consulting with a business attorney to review the disclosure statement and the sales contract to ensure compliance with state and federal standards. As business attorneys, we assist business owners at every stage of ownership, offering guidance in selecting the best entity, drafting customized governing documents, and providing ongoing business counsel.

by Elizabeth Bowery

Do You Need a Business License to Operate Your Business in Maryland?

Maryland’s business licensing framework is multifaceted, encompassing various licenses depending on the business type. The state does not mandate a general license for every business operating within its borders, so business owners must identify which (if any) licenses are required for their business and apply to the appropriate licensing or regulatory body.

In Maryland, there are several types of state business licenses available, including a trader’s license and a chain store license. These business licenses are issued by the Clerk of the Circuit Court in the county (or Baltimore City) where the business is located. To apply for these licenses, frequently requested information across counties includes:

• Name and location of the entity
• Federal tax identification number
• SDAT account number
• Sales & use tax account number (if applicable)
• Worker’s compensation insurance policy number (if applicable)

Depending on the nature of the business, several additional licenses or permits may apply. Regulated industries, such as alcohol and transportation, often require licensure from state and federal agencies. Moreover, professionals who work in the business must obtain specific professional or occupational licenses from the appropriate state boards. Some counties and municipalities may impose their own local requirements as well.

Consider consulting with a business attorney to ensure compliance with applicable licensing requirements. As business attorneys, we assist business owners at every stage of ownership, offering guidance in selecting the best entity, drafting customized governing documents, and providing ongoing business counsel.

by Elizabeth Bowery

Forming a Limited Liability Company in Maryland

To form a Maryland limited liability company, the person wishing to form the new entity must file a document called Articles of Organization with the Maryland Department of Assessments and Taxation. These Articles of Organization must contain information required by the Maryland Limited Liability Company Act, including:
• the name of the LLC;
• the purpose for which the company is being formed;
• the address of the LLC’s principal office located in Maryland; and
• the name and address of the LLC’s resident agent.

The state charges a filing fee for submission of Articles of Organization. The amount of this fee, and the government’s processing time, will vary depending on the method chosen for submission. Articles of Organization can be filed online, by mail, or in person. For those seeking the quickest processing time, Maryland offers expedited service for an additional fee. The LLC entity will only be officially formed once its Articles of Organization have been filed with, and accepted by, the Department of Assessments and Taxation.

While the filing and acceptance of Articles of Organization creates a new LLC entity, an important additional step may be the creation and approval of a written Operating Agreement for the company. Maryland law does not mandate that a Maryland LLC have a written Operating Agreement, but a written Operating Agreement is strongly recommended if there is to be more than one member/owner of the company (and also in some circumstances when there will be only a single member/owner). An Operating Agreement sets forth in detail the members’ rights and responsibilities, as well as the company’s operating rules and procedures. Although the Articles of Organization and the Operating Agreement are both considered to be governing documents for the LLC, only the Articles of Organization are filed with the state and become part of the public record. An Operating Agreement remains in the company’s business records without public filing.

Consider consulting with a business attorney to assist you with setting up your LLC, or in preparing of a written Operating Agreement.

by Elizabeth Bowery

Maintaining Your Business in Good Standing

In Maryland, a Certificate of Status (commonly known as a Certificate of Good Standing) is a document issued by the State Department of Assessments and Taxation (SDAT) which certifies that a business is in compliance with Maryland’s requirements and is in good standing to conduct business in the state.

To be in good standing, a business must meet several requirements, including:

• filing annual reports with SDAT;
• filing the name and address of a resident agent;
• paying penalties owed to the State of Maryland; and
• not being dissolved.

Certificates of good standing are routinely required for commercial financing, licensing, and acquisitions. For example, a Maryland business wishing to obtain a business loan or license would likely need to furnish a Certificate of Status as part of the application process to indicate the business is authorized to transact business in the state.

A business can be deemed not in good standing if it falls out of compliance with any of the requirements. Top compliance issues include failure to file an annual report, non-payment of penalties, and administrative actions taken by state agencies, such as the Maryland Office of the Comptroller. Good standing can be restored by addressing all outstanding compliance issues.

Consider consulting with a business attorney to assist you with maintaining or regaining your business’ good standing status. As business attorneys, we assist business owners at every stage of ownership, offering guidance in selecting the best entity, drafting customized governing documents, and providing ongoing business counsel.

by Elizabeth Bowery

Starting a New Business: Getting an Employer Identification Number (EIN)

Starting a New Business: Getting an Employer Identification Number (EIN)

After a business founder establishes a new business entity, in most cases they will need to obtain an Employment Identification Number (EIN) in order to begin operation of the business. An EIN enables a new business to interact with the government, financial institutions, and other businesses. Although the Internal Revenue Service (IRS) only mandates EINs for certain business entities (e.g., partnerships and corporations), any business can obtain one. For more details on each entity type and their requirements, see my previous post: “Starting a new business: Deciding the type of business entity to establish.”

Tax Identification Numbers

The IRS uses Taxpayer Identification Numbers (TIN) to identify individuals, businesses and other entities for tax purposes. Among the multiple kinds of TINs, the most prevalent ones in a business context are the Social Security Number (SSN) and the Employer Identification Number (EIN). An SSN is issued to individuals by the Social Security Administration, and an EIN is issued to individuals (e.g., sole proprietors) and other business entities (e.g., partnerships and corporations) by the IRS.

Businesses That Need An EIN

A business needs an EIN if any of the following apply:

• It has one or more employees
• Operates as a partnership
• Operates as a corporation
• Files any of these tax returns: employment, excise, alcohol, tobacco or firearms
• Has a Keogh plan (A Keogh plan is a tax-deferred retirement plan available to self-employed individuals or unincorporated businesses).
• Withholds taxes on income, other than wages, paid to a non-resident alien, or
• Is involved with certain types of organizations, including, but not limited to: trusts, estates, non-profit organizations, real estate mortgage investment conduit, famers’ market cooperative, or plan administrators. For more information, see “Do you need an EIN?”

Benefits of an EIN

There are multiple benefits to obtaining an EIN for your business—even if it is not required:

• Separation of Personal and Business Finances: For sole proprietors, limited liability companies, and other business entities, it is important to keep business and personal assets separate. By using an EIN on business-related documents, it helps to create a clear distinction between business and personal transactions.
• Opening Business Bank Accounts and Securing Business Loans: Many banks require an EIN to identify a business before offering to open a business bank account and/or providing a business loan.
• Hiring and Paying Employees: For a business to hire and pay W-2 employees, the IRS requires an EIN to report wages and withhold taxes.
• Protection from Identity Theft: Providing an EIN instead of an SSN for business purposes can reduce the risk of identity theft. This is especially relevant for sole proprietors or other individuals who are frequently required to provide their SSN for business transactions.
• Compliance and Tax Filings: Many businesses secure an EIN to remain compliant with IRS regulations and file their federal tax returns.

As business attorneys, we assist business owners at every stage of ownership, offering guidance in selecting the best entity, drafting customized governing documents, and providing ongoing business counsel. We can help you navigate legal complexities so you can focus on growing your business.

by Elizabeth Bowery

Starting a new business: Deciding the type of business entity to establish

One of the first decisions a new business owner faces is choosing the best type of business entity to establish. Which entity is best for a particular venture depends on several considerations, including how the business is going to be owned (by a single person, by a small number of people, by a primary owner with a number of investors, etc.), the extent to which protecting the owner’s personal assets from the company’s creditors is important, tax implications (such as avoiding double taxation), and the costs associated with starting the business.

There are various types of business entities in the United States. Each state’s law governs how a business is formed in that particular state. Once formed in one state, a business entity can then also operate in other states, as long as it meets the criteria for qualifying to do business in each of those states. The most common forms of business entities are:

• Sole Proprietorships
• Partnerships (including general partnerships and limited partnerships)
• Corporations (including so-called C-corporations and S-corporations)
• Limited Liability Companies

Sole Proprietorships

A sole proprietorship is an unincorporated business that is owned by one individual. There is no legal separation between the owner and the company. As a result, if the business assets are not sufficient to cover the debts and obligations of the business, the owner may be personally responsible for paying debts of the business. As to taxes, the business is not taxed separately from the owner in a sole proprietorship. Instead, the owner is subject to personal and self-employment taxes for federal taxation purposes. In addition, Maryland sole proprietors report their net business profit or loss with their other income and deductions on their personal state tax return and are taxed at individual rates. While no paperwork needs to be filed with the state to form a sole proprietorship, startup costs may include a trade registration (if the business is trading under a name distinct from the owner’s) and, depending on the industry, any required business licenses, permits, or insurance.

Partnerships

A partnership is an unincorporated business in which ownership is shared between two or more people. There are several types of partnerships. In a general partnership, all of the partners manage the business and have unlimited personal liability for the debts and obligations of the business. In a limited partnership, there is only one general partner who manages the business, and one or more limited partners who do not participate in the management of the business. The general partner has unlimited personal liability, but the limited partners have more limited liability, being responsible only to the extent of their investment. In a limited liability partnership, each partner enjoys limited liability for the debts of the partnership and may participate in managing the business.

Partnerships are considered “pass through” entities, where the business itself is not taxed and the business’ profits or losses “pass through” to its owners. Federally, the partnership must file an information return to report its financials. Each partner is subject to personal tax and is taxed at individual rates. General partners are also subject to self-employment tax. In Maryland, partnerships must file an information return to report their financials. The partners report their net business profit or loss with their other income and deductions on their personal tax return and are taxed at individual rates.

The startup expenses are comparable to those of a sole proprietorship in that the partnership may choose to register a tradename and the required business licenses, permits, or insurance are industry specific. However, while the state does not mandate formation documents for the creation of a partnership, prudent business owners will enter into a partnership agreement to clearly establish the partner’s rights and the partnership’s operational structure.

Corporations

C-Corporations

A corporation is a legal entity that is separate from its owners. Corporations are owned by shareholders, which may be individuals or other business entities. As a distinct legal entity, a corporation possesses its own legal identity and can be held legally liable for its business debts and obligations to the extent of the corporation’s assets. Shareholders, by contrast, are generally not personally liable. Moreover, as a separate legal entity, a corporation is subject to federal and state income taxes. The default tax classification for corporations is a so-called C corporation—a corporation that is taxed under Subchapter C of the Internal Revenue Code. C corporations are taxed twice, which is often referred to as “double taxation.” Income earned by a corporation is first taxed at corporate tax rates. Then, if the corporation distributes income to shareholders as dividends, the income is taxed again at individual rates. In practice, the corporation files federal and state corporate tax returns, and the shareholders report the dividends they received as part of their income on their federal and state tax returns.

There are several expenditures associated with starting a corporation. To form a corporation in Maryland, the owners must file Articles of Incorporation with the State Department of Assessments and Taxation, and it carries a filing fee. After the Articles of Incorporation are reviewed and accepted, the corporation’s board of directors is required to hold a meeting where they adopt bylaws (rules that govern the corporation), and there are often legal fees involved in drafting corporate bylaws. Lastly, similar to the other entity types, costs may also include a trade registration, along with any required business licenses, permits or insurance.

S-Corporations

A so-called S-Corporation (S corp) is a corporation that elects to be taxed under Subchapter S of the Internal Revenue Code rather than being taxed as a C-corporation (C corp) under the default rule (as described above); it is a federal tax classification, and the state laws governing corporations do not distinguish between the two. S corps share many similarities with C corps, including the fact that both are separate legal entities, so shareholders are not personally liable for the corporation’s debts, and both typically incur the same range of startup expenses. The main difference between the two lies in the tax advantage offered by an S corp. S corps are “pass through” entities (as described above), thus the S corp is not subject to corporate tax, and income distributed to shareholders is reported as part of their income on their federal and state tax returns. Another difference is that while C corps have no restrictions on ownership, S corps are subject to several limitations, including the requirement that they be owned by individuals (not other business entities) and are limited to 100 shareholders.

Limited Liability Companies

A Limited Liability Company (LLC) offers advantages found in partnerships and corporations. Similar to C corps, LLCs face no restrictions on who can be an owner, and since the LLC is a separate legal entity, its members are protected from personal liability for the LLC’s debts and obligations. Regarding taxation, LLCs can choose to be taxed as a partnership or corporation. An LLC with two or more members is classified as a partnership unless it elects to be taxed as a corporation. If taxed as a partnership, the LLC can avoid the double taxation typically associated with corporations and benefit from “pass through” taxation (as described above). In this case, the LLC is not taxed, and the members report their income on their individual tax returns and are taxed at individual rates. The members are also subject to self-employment tax. The startup expenses are similar to those of a corporation, as, in Maryland, the owners of an LLC must file Articles of Organization with the State Department of Assessments and Taxation to form the company. While Maryland law does not mandate the creation of an operating agreement, it is strongly recommended to have one drafted (if there will be more than one member) to define the members’ rights and the company’s operating procedures. LLCs, like the other business entities, may incur additional costs, including trade registration, as well as any necessary business licenses, permits or insurance.

Consult with a Business Lawyer Before Choosing a Business Entity

Choosing the best type of business entity is an important decision that is often fraught with questions. As business lawyers, we can help you navigate legal complexities so you can focus on growing your business. We assist business owners at every stage of ownership, offering guidance in selecting the best entity, drafting customized governing documents, and providing ongoing business counsel.