How do I choose my business structure?

If you’re thinking of starting a business, you’ll need to look at the advantages and disadvantages of each business structure and work out which structure best suits your needs.

The four most common types of business structures in Australia are:

• Company;
• Sole trader;
• Partnership;
• Trust.

Company

A company is a separate legal entity with the ability to hold assets and be responsible for the debts of the business. Companies are listed with the Australian Securities and Investments Commission (ASIC) and are controlled by directors.

Shareholders are the individuals who contribute capital to the business in exchange for shares. They do not hold the assets of the company, are not liable to pay the debts of the company and do not control the day-to-day running of the company. The running of the company is the responsibility of the individual directors.

Advantages

• The biggest advantage of a company is that it is a separate legal entity, meaning the directors are not liable to repay any debts incurred by the company. Generally, directors will only be liable in certain situations, the most common of which is where they sign a personal guarantee;
• Company structures are widely used and accepted, making the structure commercially advantageous;
• Contributions made by the company to an employee’s superannuation fund may be claimed by the company as a tax deduction; and
• Losses may be transferred from one company in a group to another where there is 100% common ownership and a parent-subsidiary relationship.

Disadvantages

• Requires you to understand and comply with all obligations under the Corporations Act 2001 (Cth);
• Tax losses are trapped within the company;
• There are ongoing costs associated with companies, such as annual filing fees and likely a higher involvement of accountants (and their associated fees); and
• Principals that become employees are subject business structure to certain disadvantages such as payroll tax and compulsory superannuation payments. 

Sole Trader

You have probably seen a sole trader before as they can be identified by the use of their trading name (e.g. Bob Smith trading as Bob’s Bakery). This makes it quite clear that a sole trader is an individual who is responsible for the running and operation of the business. This means there is no separate legal entity.

Advantages

• A simpler business structure which is easy to set up and terminate;
• Allows the individual to remain in control as they are responsible for business decisions;
• The business is taxed at the individual’s tax rate and therefore able to offset tax losses against any other income of the owner;
• The business can take advantage of the 50% capital gains tax which is not available to other business structures; and
• The owner is not treated as an employee of the business and not required to pay payroll tax or workers compensation liabilities.

Disadvantages

• The owner is responsible for all the debts of the business. As the business is deemed a separate legal entity, the owner leaves himself or herself open to being sued for outstanding debts and negligence of the business. If the claims against the owner are successful, their personal assets are on the line for satisfying any monetary court order. This is a major deterrent for some business owners;
• Pay as You Go Tax is to be paid quarterly by sole traders which can create cash flow problems;
• The business ends when the sole trader no longer wants to work, including upon retirement or death; and
• The business may be more difficult to sell as customers identify with the original owner.

Partnership

A partnership is a relationship between people or entities for the purpose of carrying on a business venture or business activity, with a view to making profit. Partnerships are governed by the Partnership Act 1958 (Vic) and it is important to know that the definition of a partnership is even wider for tax purposes.

Similarly to a sole trader, the assets of the partnership are owned by the individuals or entities jointly or in their respective proportions. For this reason, it is very important to set out how much of the business is owned by each partner in a Partnership Agreement.

Advantages

• A partnership can draw on the skill and knowledge of the two partners;
• The advantages of a sole proprietor apply to a partnership where the partners are individuals;
• For tax purposes, the partnership is treated as a separate entity although the partners receive many of the same tax benefits as sole proprietors;
• One of the main reasons for choosing a partnership is that any losses are not trapped by the business. This means the income of a partnership is taxed on the individual partners based on their share of the profits and losses. Any losses can be used by that partner against their income from any other sources; and
• A partnership can be flexible, allowing the partners to adjust the distribution of profits and losses subject to amending any Partnership Agreement.

Disadvantages

• As the partnership does not create a separate legal entity, the partners have unlimited liability for the debts of the business. This can strain the relationship between the parties as both partners will be liable for debts even if one partner acted without the other partner’s knowledge;
• A change in the membership of partners will constitute a new partnership for the purposes of the Income Tax Assessment Act 1936 (Cth) meaning there is no continuity of business; and
• Limited partnerships can be established where at least one partner has limited liability and the other unlimited. The limited partner’s liability to contribute to debts is limited to the amount of capital they contribute. While this can be beneficial for the limited partner, the partnership will be treated as a company for tax purposes which has the potential of outweighing the benefit of having a limited partnership.

Trust

A trust is an obligation imposed on a person, a trustee, to hold property or assets (such as business assets) for the benefit of others, known as beneficiaries. A formal trust deed will set out details of the trust and how it operates.

Advantages

• The trustee of a trust can be a company which provides some asset protection; and
• The trust may be a more stringent and therefore stream-lined business structure as it is governed by a trust deed.

Disadvantages

• Can be expensive to set up and operate;
• Tax losses are trapped in the trust; and
• Requires the trustee (usually a corporate trustee) to undertake formal yearly administrative tasks.

Whichever structure you choose, you should keep in mind that a good structure will:

1. Provide adequate asset protection to the amount desired by the business owner;
2. Minimise costs, such as tax;
3. Allow for sufficient distribution of profits;
4. Provide flexibility to adapt to the changes of the business; and
5. Accurately represent the rights of the owners of the business.

If you are interested in learning more about company structures, keep an eye out for an invite to our business lawyers Melbourne upcoming presentation on business structures and business disputes.