Should you incorporate your business?

When starting a new business you can structure it in three legal forms: a sole proprietorship, a corporation, or a partnership. There are numerous differences to consider when determining which legal structure is optimal for your situation. The various pros and cons will be covered in this article.

Legal Structures:

Incorporation:

One question you may have when first starting out is if you should incorporate your business. A corporation is a separate legal entity owed by the shareholders of the corporation. It pays its own taxes at corporate tax rates, and any distribution out of the corporation to shareholders results in personal tax, which in turn becomes two levels of taxation.

Corporations also allow for limited liability to the shareholders. This means that an incorporated shareholder is not personally accountable if the corporation is found liable for damages in a lawsuit. Tax debts, and in some cases gross negligence, can still expose the shareholder(s) or director(s) of the corporation to liability.

Sole Proprietorship:

A sole proprietorship operates a business without any separate legal entity, so the business owner has personal liability for any actions of the business. Insurance can be used to mitigate this risk. A sole-proprietor also would declare income/losses on his or her personal tax return, so there is only one level of taxation.

Partnership:

A partnership is when two or more individuals come together to conduct business in the pursuit of profit. The income/losses of the business are distributed to the partners based on the partnership agreement in place, and included in the partners’ tax returns. Therefore, there is one level of taxation as the partnership is not considered a taxable entity. In certain cases, the partners may have limited liability like in a corporation, but generally partners are liable for the actions of the partnership.

Reasons to Incorporate your business

When you incorporate your business, you pay tax at the small business corporate tax rate at 12% in Alberta. This is assuming you earn less than $500,000 a year in net income. You only pay additional personal tax on funds distributed to shareholders, which means you can leave the profits in your business to re-invest, and only pay the corporate tax rate. Personal tax rates range between 25% to 48% in Alberta, which means you will pay less tax if you do not need to distribute all the net income generated in the business.

In certain cases, where other family members help out in the business, income splitting can also be taken advantage of. This means that a portion of the earnings can be distributed to other family members to utilize lower personal tax brackets. See our previous article on “Income Sprinkling Rule Changes” for additional details.

When you incorporate your business,  you can choose to pay dividends to shareholders rather than salary, which allows you to opt-out of contributing to the Canada Pension Plan (“CPP”). Incorporated individuals must pay the employer and employee portion of CPP, which is 9.9%, up to a maximum, every year. Therefore, many of our clients choose to pay dividends and not pay into the CPP pool. See our article on “Shareholder Compensation” for additional details.

An incorporated individual has access to the “lifetime capital gains exemption.” Generally, if they sell the shares of their business after two or more years of operations, and it meets certain criteria, they have up to $848,252 (as of today) in capital gains that would be tax free to the shareholder(s). There are various tax planning opportunities that can be put in place to ensure tax exposure on a sale of a business is mitigated.

Reasons Not to Incorporate Your business

One reason is, there is an administrative cost to incorporating. It’s a one time incorporation fee, as well as annual corporate tax filings and accounting requirements. These costs exceed the sole-proprietor filing requirements. This administrative cost should be weighed against the tax and legal benefits for each individual before deciding if incorporation is right for you.

In cases where all the income of the corporation is being distributed to the shareholders, and no amounts are retained in the corporation, there is no tax advantage to incorporating since the two levels of tax when incorporated should be very similar to the personal tax you would pay anyway. The tax system is designed with this in mind. If this is the case, the other benefits listed may still apply though.

In cases where large losses accrue in the early stages of a business, it may be difficult to use those losses to decrease tax in a corporation as they become “trapped” until income is generated to offset the loss. For sole-proprietors and partnerships, losses can be taken against other forms of income on the personal tax return in the year the loss was incurred.

At Kapasi, we make sure to understand all the details of your work and financial situation before advising on the best approach. Feel free to reach out to us to walk through your situation and provide our advice.