I was approached by a client the other day with a question I couldn’t immediately answer. He has a small construction business and was looking for a partner so he could win bigger contracts, and he wondered how he should go about doing that. I had to tell him I couldn’t give him advice on structuring a small business because I’m not a lawyer or an accountant, but I knew I could give him information, so I started to research.
I knew from setting up my own company about the various structures Canadian small businesses can use. I thought his choices would be limited to sole proprietorship, partnership and incorporation. There’s also a co-operative, but that doesn’t apply to my client. I guessed that the best way to help him out would be to define and give him the advantages and disadvantages of each.
Sole proprietorships are owned by one individual, and are legally considered an extension of yourself. That means that any liability or obligation your business incurs is also a personal liability or obligation. So, if your sole proprietorship fails, your personal assets can be seized to pay for that liability of obligation. I’d say that’s a pretty big disadvantage. On the plus side though, sole proprietorships are the easiest to set up and, and don’t even have to be registered if its name is exactly the same as your own.
A partnership is an agreement between two or more persons to carry on business together. Partnerships are a separate legal entity from you, and must have at least one general partner. All partners can be general, but there must be at least one general partner. Partnerships are relatively easy to set up, but although not a requirement, the parties should have a contract between themselves outlining responsibilities and obligations.
A general partner is responsible for business decisions, running the company and acting on its behalf. Each general partner is jointly and severally liable for partnership debts. This means one partner can be held responsible for the decisions, debts and obligations of another partner. Strike one against general partnerships, I’d say.
So what about a limited partner then? Limited partners are not involved in decision-making or in the day-to-day running of the business. Usually, a limited partner’s contribution is financial, and their liability is limited to the amount they invested in the firm. What that means is you basically have no say over how the money you invested is used, which means you have zero power. And, the moment a limited partner becomes involved in running the business or acts on behalf of the business, they become a general partner.
A corporation is a separate entity from yourself, which means you don’t have personal liability for debts, obligations or even acts of the company. You’re not personally responsible for any decisions someone else in the corporation makes, and you’re only liable up to the amount of unpaid portion of shares you own. Sounds pretty good so far.
Limited liability is a big advantage over other forms of small business structure. And there are more advantages. Corporations continue to exist after their shareholders die and can be passed on to family or friends. Raising money is easier for a corporation than either sole proprietorship or partnerships. There can also be tax advantages.
So what are the disadvantages? Well, there’s more paperwork because you’re required to keep records and you have to file a separate tax return. It costs more to register a corporation than setting up a sole proprietorship or a partnership. And, if you give a personal guarantee, which banks often ask for, you may be liable for that amount even if your company ceases to exist.
I thought my client’s choice would be limited to those three choices, but further research showed I was wrong. There is another one: joint venture. A joint venture is like a partnership because it’s an agreement between two or more people or small businesses, but there are important differences. In a joint venture, two or more people contribute goods, services or capital to one business enterprise. To date, Canada does not have specific laws governing joint ventures, as it does with all the other small business forms.
A joint venture agreement outlines joint venture terms, contributions of each party, management structure and how the profits will be divided. Joint ventures avoid the partnership disadvantage of joint and several liability, and also allows each joint venturer to regulate their own tax deductions. That’s a big advantage for joint ventures.
However, a joint venture has sometimes been defined by the absence of key partnership elements. This means small businesses intending to enter into a joint venture agreement must thoroughly understand partnership elements and avoid using them in order to avoid being deemed a partnership rather than a joint venture. What might have started out being a joint venture could lose its joint venture advantage by being deemed a partnership, and inherit the disadvantages of a partnership instead.
You can incorporate a joint venture, which would then have the same advantages and disadvantages of any corporation. And it would have the advantages and disadvantages of a joint venture. Could this possibly be the best solution?
So, I showed all this information to my client last week. He was glad to be able to understand all the differences, and wants to make a decision by the end of the month. I wonder what his decision will be. I know what I would do. Do you?