Incorporation (business)

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Incorporation (Inc.) is the forming of a new corporation (a corporation being a legal entity that is effectively recognized as a person under the law). The corporation may be a business, a non-profit organization, sports club, or a government of a new city or town. This article focuses on the process of incorporation; see also corporation

In the United States[edit]

Legal benefits[edit]

Important Case Law[edit]

American opinion of corporations has evolved significantly throughout history, and Supreme Court cases provide a means to observe this evolution. While these cases may seem arbitrary and decontextualized when examined individually, when viewed successively and within historical context, a narrative emerges that offers an explanation for why such views are upheld.

Dartmouth College V Woodward, 1819[edit]

1816 the New Hampshire state legislature passed a bill that would turn privately owned Dartmouth College into a publicly owned university with a Board of Trustees appointed by the governor.[1] The Board filed a suit challenging the constitutionality of the legislature. The suit alleged the college enjoyed the right to contract and the government changing that contract was not allowed. Chief Justice John Marshall delivered the majority opinion and affirmed that the right to contract exists between owners of private property rather than between a government and its citizens. The case was the first case in US history that asked fundamental questions about corporate entities and the protections they enjoy; it also was a precedent-setting case in extending “individual rights” to corporations.

Santa Clara County V Southern Pacific Railroad, 1886[edit]

The railroad was an expensive multi-year project that greatly changed and altered both the physical and commercial landscape of the country. As with most new technology developments that have a broad impact, there are disputes about how those technologies and the businesses they thrive in fit under the umbrella of laws that govern regulations and taxation. In 1886 one such taxation dispute arose between Santa Clara County and Southern Pacific Railroad.[2] The railroad thought the tax code was misapplied to some of their property and assets. In deciding the case, a unanimous court ruled that governments must abide by the by the same tax code enforcement for individuals that it did for corporations. While not explicitly stated in the case, it was implied that this case extended equal protection rights to corporation under the 14th amendment.

Liggett V Lee, 1933[edit]

The booming economy the railroad corporations helped build from the late 19th into the early 20th centuries came to a screeching halt in 1929. The Great Depression, as it came to be known, helped a view of corporations emerge that put them at odds with the normal working man. The election of Franklin D. Roosevelt was a manifestation of many populist sentiments the country might have felt. In 1933 a Florida case came before the court, again disputing taxation.[3] In Liggett v Lee the court ruled that there could be a corporate tax, essentially saying the structure of business was a justifiably discriminatory criterion for governments to consider when writing tax legislation. This was a unique ruling handed down during a unique time in US history that denied a corporation freedom it sought in the courtroom.

First National Bank of Boston V Bellotti, 1978[edit]

From 1940 to 1990 the percent of total GDP made up by financial service professionals increased by 300%.[4] Along with that growth there was a growth in the profits this industry experienced as well. As disposable income banks and other financial institutions rose, they sought a way to use it to influence politics and policy. In response, Massachusetts passed a law limiting corporate donations strictly to issues related to their industry and nothing else.[5] The First National Bank of Boston challenged won under the first amendment. First National Bank of Boston v Bellotti allowed business to use financial speech in political causes of any nature, and not just issues related to one business’s specific industry. The Bank of Boston case was a huge win for businesses that sought to change the world through politics. As the economy was deregulated and the stock market grew healthily, corporate influence of the political landscape only augmented.

Citizens United V FEC 2010[edit]

In 2010 amidst an outpouring of frustration and blame directed at Wall Street the issue of corporate contributions came before the court again.[6] In Citizens United v FEC the court said there was virtually no distinction between monetary contributions and political speech, and because we do not limit political speech unless it is tantamount to bribery, corporations have the right as people to donate unlimited amounts of money to any political cause so long as it is not to a direct campaign.

Steps required for incorporation[edit]

The articles of incorporation (also called a charter, certificate of incorporation or letters patent) are filed with the appropriate state office, listing the purpose of the corporation, its principal place of business and the number and type of shares of stock.[7] A registration fee is due, which is usually between $25 and $1,000, depending on the state.

A corporate name is generally made up of three parts: "distinctive element", "descriptive element", and a legal ending. All corporations must have a distinctive element, and in most filing jurisdictions, a legal ending to their names. Some corporations choose not to have a descriptive element. In the name "Tiger Computers, Inc.", the word "Tiger" is the distinctive element; the word "Computers" is the descriptive element; and the "Inc." is the legal ending. The legal ending indicates that it is in fact a legal corporation and not just a business registration or partnership. Incorporated, limited, and corporation, or their respective abbreviations (Inc., Ltd., Corp.) are the possible legal endings in the U.S.

Usually, there are also corporate bylaws which must be filed with the state. Bylaws outline a number of important administrative details such as when annual shareholder meetings will be held, who can vote and the manner in which shareholders will be notified if there is need for an additional "special" meeting.

Taxation[edit]

Corporations can only deduct net operating losses going back two years and forward 20 years.

Reporting after incorporation[edit]

Assuming a corporation has not sold stock to the public, conducting corporate business is straightforward. Often, it amounts to recording key corporate decisions (for example, borrowing money or buying real estate) and holding an annual meeting. These formalities can often be supplanted by written agreement and do not usually need a face-to-face meeting.

In the United Kingdom[edit]

Main article: Company Formation

In the U.K., the process of incorporation is generally called company formation. The United Kingdom is one of the quickest locations to incorporate, with a fully electronic process and a very fast turnaround by the national registrar of companies, the Companies House. The current Companies House record is five minutes to vet and issue a certificate of incorporation for an electronic application.[citation needed]

Types of companies[edit]

There are many different types of UK companies:

International perspective[edit]

The legal concept of incorporation is recognized all over the world.

Sole proprietorship (person fizik) - A business owned and managed by one individual who is personally liable for all business debts and obligations.
Limited liability company (LLC) - A hybrid legal structure that provides the limited liability features of a corporation and the tax efficiencies and operational flexibility of a partnership.
Corporation - A legal entity owned by shareholders.
Non-profit - An organization engaged in activities of public or private interest where making a profit is not a primary mission. Some non-profits are exempt from federal taxes.

See also[edit]

References[edit]

  1. ^ Dartmouth College V Woodward, 1819
  2. ^ Santa Clara County V Southern Pacific Railroad, 1886
  3. ^ Liggett V Lee, 1933
  4. ^ Cracks in the Pipeline Part One: Restoring Efficiency to Wall Street and Value to Main Street
  5. ^ Bank of Boston V Belloti, 1978
  6. ^ Citizens United V FEC, 2010
  7. ^ Interactive map of U.S. state corporation departments, LawServer
  8. ^ companies.com.my/
  9. ^ "Singapore Private Limited Company Guide". Rikvin.com. Retrieved 2013-11-25. 
  10. ^ "Details on Private Limited Company". Businessdictionary.com. Retrieved 2013-11-25. 

External links[edit]