Which business medium is best for you?

Deciding to set up your own business can be an exciting yet daunting experience. You’ve come up with your business plan, but do you know what medium your business will take? Are you going to go it alone as a sole trader? How about a partnership? Maybe register as a company limited by shares?

This blog post will tell you about each business medium and provide you with the advantages and disadvantages of each one.

Sole Trader

A sole trader is someone who is self employed. They own their business by themselves and have completely responsibility for it. That doesn’t mean to say you would have to work alone, a sole trader can have employees.

Profits from a sole trader’s business forms part of that person’s taxable income. This is subject to income tax which is paid via a self-assessment each year

ADVANTAGES DISADVANTAGES
THE PROFITS OF THE BUSINESS ARE ENTIRELY YOURS – once taxes have been paid and any employee wages (if applicable), the remaining sum is yours to do with as you please. UNLIMITED LIABILITY – By far the biggest disadvantage of setting up as a sole trader is that liability for the businesses losses and debts falls entirely on you. If your business falls on hard times, you will be liable. This can include your home being at risk as well as personal savings and any other assets you have both inside and outside of the business. Also, if for any reason a customer sues the business, they are essentially suing you.
CONTROL – As the only owner of the business, you will have complete control over the running of it. Decisions will not have to be put to a vote or require approval from anyone else making it easier and faster to implement changes. FINANCE – Setting up as a sole trader can be expensive. You will need equipment, machinery and perhaps premises. These will need to be paid for out of your own money whether savings or a loan. Unlike  a company, you cannot sell shares in the business to raise money.

 

IMPROVED CUSTOMER SERVICE – It could be argued that as a smaller sole trader business you are able to offer a more personalised approach to your customers. This is because as the only owner you are a lot more involved in the business. It seems that you can develop relationships with customers, than can turn in to repeat loyal buyers as well as suppliers that can lead to cheaper rates. SELF-STARTER – As the only person involved in the business at least to start with, you will have to do every job required from sales to cleaning. At the outset you will be particularly busy and it is down to you alone to keep on top of everything. This inevitably means working long hours including evenings and weekends.
LESS RED TAPE – Setting up as a sole trader has the least amount of ‘red tape’ surrounding it. The only requirement is to inform HMRC of your business. Once that is done, you can start trading right away. DECISION MAKING – Although I’ve included this  in advantages, it can also be a disadvantage. As you make all the decisions, there is nobody to fall back on for help, or to blame if the wrong decision is made. The success or failure of the business rests on you. This can lead to a build up of pressure, particularly at the start whilst the business is developing.
PRIVATE DATA – Information about a sole trader is kept private. This is not the same for companies. REVERSE ECONOMIES OF SCALE – Sole traders are unable to take advantage of economies of scale in the same way companies and larger corporations, who can afford to buy in bulk. This can lead to being charged higher prices for stock which may be reflected on to your customers.
ACCOUNTS – As a sole trader all you are required to complete is a profit and loss account. Subsequently, accountants’ fees are usually lower than for completing company accounts. IF YOU DON’T WORK, YOU DON’T MAKE MONEY – This speaks for itself. If your business is closed, there will be no customer purchases. If there are no purchases, the business is not making money.
WORKING HOURS – As a sole trader, you decide when you want to go to work. If you decide you want a day off, you can take it. It has been said that the best part of being a sole trader is having the freedom to strike the perfect balance between work and social life.

Partnership

A partnership is where two or more people carry on business together. For tax purposes they are treated the same as sole traders in that the profits and losses are subject to income tax via each partner’s self-assessments each year.

Generally, each partner has equally responsibility and authority to run the business (unless stated otherwise in a partnership agreement) and the actions of one partner can bind the entire partnership.

Although not a requirement, most partnerships have a detailed partnership agreement setting out a range of terms of the partnership. This includes, how the business will be financed, which partner does what work, what happens if one partner dies and what happens if one or more of the partners wants to dissolve the partnership.

You can find out more about Limited Liability Partnerships here.

ADVANTAGES DISADVANTAGES
CAPITAL – As with a sole trader business, a partnership cannot sell shares in the business in order to raise funds to set up the business. However, with a partnership there are at least 2 people to contribute towards that initial start up fees. The more money that can be put into the business allows for better flexibility and more potential for growth. This in turn should hopefully lead to more potential profit. TAXATION – Partnerships are taxed in the same way as a sole trader. Each individual partner pays income tax on their share of the profits. This can be a disadvantage as partnerships usually have bigger profits than sole traders (due to the higher amount of capital first invested). This can lead to big tax implications for the partners.
LESS RED TAPE – Setting up as a partnership is generally quite easy. Much the same as for a sole trader, the only requirement is registration with HMRC. JOINT AND SEVERAL – Business partners are jointly and individually liable for the actions of the other partners. If one partner makes an error, or gets the business into debt, all the partners will be liable for that debt.
KNOWLEDGE – A partnership may benefit from the combination of complimentary skills of the two or more partners. There is a wider pool of knowledge, skills and contracts. Different partners can specialise in different aspects of the business. DISAGREEMENTS – Perhaps an obvious disadvantage of a partnership is the danger of disagreements between partners. One partner may feel that their idea is ‘better’ about a decision or how the business should be run. This can lead to disagreements that can harm both the business and the relationship of those involved.
FLEXIBILITY – Partnerships are quite flexible in terms of management. There is no interference from shareholders. You only need agreement from the other partner/s. UNLIMITED LIABILITY –  As with a sole trader, the partners of the business have unlimited liability for the losses and debt of the business. Although this liability could be split between the partners this could still be a large amount. This could lead to losing your home, personal savings and any assets within or outside the business.
SHARED RESPONSIBILITY – The pressure and weight of running the business does not rest on one person’s shoulders. It is shared equally amongst the partners. Rather than splitting the management and taking an equal share in each task, each partner may take on the full task that they excel at. For example, if a partner is particularly good at figures, they may deal with the book keeping. Whereas another may be good at sales and so deal with that aspect of the business. PROFIT SHARING – The profits of the business are shared equally between the partners (unless stated otherwise in the partnership agreement) This can lead to issues if one partner is not putting as much effort into the running of the business as others but still getting the benefits.
DECISION MAKING – As there is more than one person making decisions, the partners of the business can help each other out when necessary. Each partner can bring something different to the table and these can be moulded together to achieve the best outcome for any problem the business may face. DECISION MAKING – When decisions are made, all of the partners will need to agree in order for things to be done. This reduces the flexibility of the management of the company slightly, particularly to sole traders. However, this is still greater flexibility than with limited companies.

Private Company Limited by Shares

The biggest difference with a company from the other mediums is that they have their own legal identity. This means that the company’s finances are not linked to your personal finances. The company is responsible for its own debts and liabilities but also keeps any profit it makes (after payment of corporation tax). A company can then pass these profits on to its shareholders through payment of a dividend. However, this is not compulsory, but it is the only way to personally benefit from the profits of the company.

The day to day running of the company is done by directors (which can vary from one director to quite a few) but any major decisions must be approved by the shareholders (again this can vary from just one shareholder to hundreds). Shareholders are able to purchase shares in order to raise capital to put back in to the company.

A private company limited by shares must be registered with Companies House and can involve quite a bit of paperwork and cost.

ADVANTAGES DISADVANTAGES
LIMITED LIABILITY– By far the biggest advantage of setting up your business as a private company limited by shares is that each shareholder is only liable for the amount unpaid on their shares. This is For example: if you had 10 shares at a cost of £3000 and you have so far only paid £2000. If the company fell into difficulty, your liability would only be £1000, even if the company had debts of £100,000. CONTROL – Although a company has directors who deal with the day to day running of the company, any big or important decisions have to be approved by the majority of the shareholders. This can be difficult to achieve, particularly when there are a large number of shareholders.
CAPITAL – A company limited by shares can increase its share capital and allot these new shares in order to raise money that can be put back into the company. This makes it a lot easier to finance than a sole trader or partnership who have to use their own money to fund the business. RED TAPE – Setting up a company limited by shares involves a lot of red tape and is covered by strict registration rules. It must be registered with Companies House which costs £15. There is also quite a lot of paper work to be completed that is quite detailed.
STATUS – A professional and corporate image is created by setting up a private limited company. This can boost the value of the business as bigger corporations and industries are likely to do business with a company rather than a partnership and particularly with a sole trader. This is because private limited companies are considered to be more established, credible and committed. PRIVACY – The accounts of the company, as well as the names of the shareholders and directors and also the directors’ personal addresses are all in the public domain

Dividends – Dividends are payments made to shareholders each year out of the profits the company makes. Although these are not compulsory, if the business is making large profits yet not paying dividends, questions will be raised. Unlike for a sole trader and partnerships, profits do not go directly to you. Once dividends are paid, any surplus profit is reinvested into the company.

CONTINUITY – The company is not affected by a change of shareholder or director. The company will continue regardless. It is not affected by the death either a shareholder or a director. The only way a company can cease is through liquidation, administration or winding up. TAXATION – Taxation for a limited company is complicated. A private limited company has its own separate legal personality and so tax is not paid via income tax as it is for a sole trader or partnership. Instead, a company pays corporation tax which can be complicated. This can lead to higher accountancy fees. Each shareholder will still have to pay income tax on any dividend they receive each year via self-assessment.

 

Not sure which business medium is right for you? Why not contact the Student Law Office to see if we can help? 

This post wasAbbie written by Abbie Swales. Abbie is a final year MLaw student at Northumbria University who currently works in a Business and Commercial Firm with the university’s Student Law Office. After graduating from university, she hopes to obtain a training contract within a commercial law firm. Outside of university, she enjoys watching Formula 1, baking and spending time with friends.

Advertisements

The new Consumer Rights Act: some key issues

In February 2015, we blogged about the new Consumer Rights Bill. On 1st October 2015, the Consumer Rights Act came into force. This post is designed to provide  a brief update on the new legislation.

What does the Consumer Rights Act cover?

Previously, the legal relationship between businesses and consumers was governed by numerous different pieces of legislation, which often lead to ambiguity when applying the law. Finally this has, to an extent, been put to an end by the new Consumer Rights Act 2015 (CRA). Any person looking at legal matters involving a business and a consumer should now turn to this Act. The Act is all about the rights of consumers – it is just like it sounds! This Act applies to both the sale of goods or services by a business to a consumer.

For traders: what should consumers expect from the goods you sell?

  1. Satisfactory quality: this means that you cannot sell goods that are faulty or damaged.
  2. Fit for purpose: if a consumer informs you that the goods are needed for a particular purpose, the goods you provide must be fit for that purpose. If they have not made you aware of it, the goods must be fit for the purpose the goods in question are commonly used.
  3. Match the given description: if you provide a description for the goods prior to or at the time of purchase, the goods must match that description.

Rules you might not be aware of:

  1. Faulty items: you should provide a full refund should there be a fault in the goods within 30 days from the purchase date.
  2. Delivery: unless agreed otherwise, you should deliver the goods within 30 days or the consumer gets a full refund.
  3. Services: any pre-contractual information about the trader or service is binding and the service provided should comply with the three following rules: i) the service should be carried out with reasonable skill and care, unless agreed otherwise ii) the price charged should be reasonable and iii) carried out within a reasonable time.
  4. Digital content: in the unlikely event of a fault in the paid digital content, or digital content supplied free with other paid items or digital content supplied on a physical item, consumers will be entitled to a full refund. This is the first time a law has been introduced in relation to digital content.

Unfair terms

The CRA states that “a term is unfair if, contrary to the requirements of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.” Put simply, this means that a term which causes a significant imbalance in the parties’ rights and obligations, to the detriment of the consumer, will be excluded from the contract and will not be binding on the consumer. The fairness test only applies when the terms of a contract are neither transparent nor prominent to the consumer. This means that it’s important for traders to make sure that their terms are clear and noticeable.

If something goes wrong?

  1. Refund: consumers are able to get a refund for any faulty product within 30days of purchase. A refund for goods that are found to be faulty beyond 30 days will vary depending on the duration the goods have been held by the consumer. The 30 day full refund policy is no longer a choice for traders as it used to be, it is now a legal requirement!
  2. Repair or Replacement: consumers, at their own discretion, can exercise their right to get the goods repaired or replaced by you.
  3. Price Reduction: If both of the above remedies are unsuccessful, and the consumer would like to continue to keep the goods, you can be obliged to return a portion of the purchase price.

Want to know more?

The Citizens Advice Bureau has a number of excellent Q&As, examples and summaries.

We also regularly advise businesses on their duties to consumers. If you have an enquiry, please contact us here.

Shazani

This blog post is written by Shazani Kulthum Jameel. Shazani is an international student from Srilanka. She is currently studying for an M Law degree at Northumbria University. As part of her final year studies, Shazani works in a business and commercial firm within the Student Law Office. On graduation, given the opportunity, she intends to practice within a commercial or business context either based in the UK or internationally that will assist her in building a successful career in law.  

Limited Liability Partnerships: a new way forward?

This blog is not intended or designed to provide legal advice. The content on our blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our blog.

What is an LLP?

The popularity associated with a private limited company can be attributed to the availability of limited liability to the shareholders. However, due to the public disclosure requirements alongside the statutory regime that a company must comply with it makes the running of a company very complex. Because of these reasons a traditional partnership is attractive but the major drawback of a partnership is that each partner has unlimited liability and could be exposed to having to meet and debts and liabilities of the partnership should it fail. This makes a partnership essentially unappealing.

These things fuelled the introduction of limited liability partnerships (LLPs) and the Limited Liability Partnership Act 2000 which came into force in 2001.  An LLP is fundamentally a hybrid between a company and a partnership.

An LLP is similar to a company in the sense that it exists as a ‘legal person’ independent from its members, can enter into contracts just like a limited liability company and, importantly, offers limited liability. However, in other ways an LLP is more like a traditional partnership.  For tax purposes an LLP is treated as a partnership and members’ profits are subject to income tax individually. An LLP also offers organisational flexibility like a traditional partnership. This flexibility promoted by an LLP has made it a desirable business medium.

What are the advantages of becoming an LLP?

Efficiencies

An LLP appears appealing because of its hybrid structure between a limited company and a Partnership. It is much easier to change the structure, management and distribution of profits within an LLP.

With regards to duties of the members in an LLP there must be at least 2 designated members who have duties to adhere to. The Limited Liability Partnership Act 2000 imposes responsibilities on designated members which include:

  • Appointing an auditor if necessary
  • Signing off an LLP’s accounts and filing them with the registrar of companies
  • Ensuring that an annual return for an LLP is filed with the registrar of companies
  • Ensuring that an LLP complies with the statutory filing requirements

These responsibilities are essentially the same as the responsibilities imposed on directors of a company. However, directors also have other statutory duties to comply with in addition. These duties are owed by the director to the company. These general duties are contained in the Companies Act 2006 and they include:

  • A duty to act within their powers;
  • A duty to promote the success of the company;
  • A duty to exercise independent judgement ;
  • A duty to exercise reasonable care skill and diligence;
  • A duty to declare any interest in a proposed transaction;
  • A duty not to receive any benefits from a third party without the company’s consent; and
  • A duty to avoid conflicts of interest.

In contrast the duties of the members of an LLP are governed by an LLP agreement (if there is one), This is a private document and the members therefore have more freedom to regulate their own affairs. An LLP is not required to have an LLP agreement though and if there is no express agreement certain default provisions will apply under the LLP Regulations.  Arguably though these default rules are not as extensive or onerous as the general duties directors owe.

Flexibility

As noted above an LLP provides the opportunity for flexibility around its internal rules and perhaps has more freedom in such decision making than a company.

Ease of establishment

An LLP can be quickly incorporated same day incorporation is even possible. Essentially to establish an LLP a minimum of 2 members being in business with a view to profit is needed.

An LLP need not file an LLP agreement at Companies House as to how the business will operate i.e. its internal rules. It is not a necessary requirement to have a written document between the members but it is beneficial otherwise default provisions in the LLP Regulations will apply. However, a Company must file the relevant articles of association at Companies House. Arguably it could be a disadvantage that there is no ‘model’ LLP agreement as  this means it will need to be drafted from scratch and could result in greater costs to set up as an LLP in comparison to a company.

Both an LLP and limited company must submit documentation to Companies House upon incorporation including relevant registration forms and in the case of a Company further details of the how the Company is intended to run i.e. the articles of association.

The incorporation fees for incorporating at Companies House are the same for both companies and LLPs.

Limited Liability of Members

The main attraction to an LLP compared to traditional partnerships is the limited liability the members will obtain. The LLP is a separate legal entity, so its members will not be liable for the debts of the LLP except in certain circumstances where the LLP becomes insolvent.

Many new businesses may choose to take this route of an LLP as it provides a safe option of limited liability alike a limited company however an LLP allows more flexibility in terms of how the internal affairs of the business are organised.

The Companies Register Activities Report for 2014/15 showed that there are currently 3,313,430 Limited Companies and 59,996 LLPs registered within the UK these figures were taken from a snapshot on 31st March 2015. This highlights the fact that Limited Companies are still the most popular business medium however LLPs clearly have significant appeal as a choice of business ownership. It will be interesting to see if significant numbers of LLPs continue to be incorporated, although only time will tell.

The links below provide further information regarding an LLP:

https://www.gov.uk/set-up-and-run-limited-liability-partnership/overview

https://www.gov.uk/business-legal-structures

This blog poBeth Lst was written by Beth Liddle. Beth is a MLaw student working in a business and commercial firm within the Student Law Office. On graduation she hopes to secure a training contract within a commercial firm.  In the meantime she plans to undertake paralegal work and also pursue her work at Citizens Advice Bureau to develop key skills she will be using in practice.