​As small business owners grapple with the economic realities of nationwide stay-home orders and social distancing mandates, legislatures have been updating laws and developing new programs to keep the economy afloat. The latest and most groundbreaking is the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2.2 trillion stimulus package aimed at supporting individuals, businesses, and governments now and beyond this pandemic. The federal government has earmarked $377 million to help small businesses avoid failure and encourage them to retain their workforces. Here are the most important things for business owners to know about the CARES Act:

• Small Business Administration (SBA) Economic Injury Disaster Loans and Emergency Economic Injury Grants. Small business owners will be able to apply for low-interest federal disaster loans to maintain cash flow for payroll, utilities, rent, and other fixed debts.[1] Additionally, small businesses may be eligible for up to $10,000 in grants, in the form of a loan advance, if they can show economic injury caused by the COVID-19 pandemic. An applicant may be eligible for the advance even if the applicant is denied the federal loan. Applicants who are approved for the loan advance will receive funds within three days of applying. 

​In a matter of weeks, the COVID-19 pandemic has impacted the world and forced communities to reevaluate everything. Despite the unpredictability that has accompanied this global crisis, it is not too late to implement changes to protect you, your employees, and your business. Here are some tips and strategies to help you navigate these challenges and the ones to come.

• Participate In and Promote Social Distancing Practices. The Centers for Disease Control and Prevention has recommended that employers “explore establish[ing] policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), to increase the physical distance among employees and between employees and others.”[1] At the time of this writing, the President has discouraged gatherings of more than ten individuals. As an employer, creating a safe and healthy environment is critical for your company’s success. Thus, employers must work toward complying with the guidance provided by local and federal leaders. Be sure to maintain the cleanliness and sanitization of any facilities where your business operates. Failure to maintain safe environments could result in loss of the goodwill you have already established within your community.

 

Are you considering leasing office or retail space for your small business? The terms of your lease can have a huge impact on whether your business succeeds or fails. There are several important provisions that should be considered before you sign on the dotted line.

Leases of a certain duration (usually one to three years, depending upon the state) are generally required to be in writing and signed by the party against which they are being enforced. In reality, it is advisable for all commercial leases to be in writing, regardless of their duration. They should clearly spell out certain terms that are of crucial importance, including the following:
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(1) The leased space. Your lease should state exactly what space you are renting, including common areas such as hallways, restrooms, stairs, and elevators. The square footage of the space and how it was measured should be specified.

​Small businesses make a huge contribution to the U.S. economy. Nevertheless, starting a new business is risky. Lenders view loans to small businesses, particularly start-ups, as among the riskiest they make, particularly when there is little or no credit history or business revenue on which to base their decision. In an effort to lessen their risk, lenders frequently require small business owners to sign personal guarantees as a condition for giving the loan.  A personal guarantee is a legal commitment by a business owner to repay a business debt if the business is unable to repay it. These guarantees put the personal assets of small business owners on the line—savings accounts, cars, homes, and retirement funds. However, there are several steps you can take to minimize your liability.

​If you are starting a new business, it is important not to overlook federal, state, and local business license and permit requirements. Almost every business, even one that is home-based, is required to obtain some form of license or permit in order to operate legally. Failure to do so can lead to fines, and in some cases, the closure of your business.
Why Are They Necessary?
The government has two main purposes for requiring licenses and permits: keeping track of a business’s revenue for taxation purposes and safeguarding the public.
For example, in the context of taxation, a state sales tax permit allows the state to oversee the collection, reporting, and payment of sales taxes: A business that sells goods or services collects the sales tax on behalf of the state and is responsible for remitting it to the state.
Other licenses and permits are aimed at protecting the public, either physically or economically. For example, occupations that could impact a person’s health, such as doctors, dentists, hair stylists and barbers, generally require professional licenses establishing that these practitioners have a certain level of expertise in their field.
What Is Required?
The licenses or permits your business must obtain will vary based on the type of business, its location, and the applicable government rules. Although it is important to check with a business planning attorney to verify which licenses and permits are needed for your particular business, the following are among the most common.

The State Liquor Enforcement Division (LED) is looking for some basic things.
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• LICENSES ARE NOT UP TO DATE. LED is going to look to see that all the liquor, sales tax, and retail food establishment licenses are current and displayed in a conspicuous location. Make sure you renew all of your licenses before they expire. Also, make sure all your current licenses are displayed in a location that is in view of the public and not covered or obscured by anything. Don’t put your licenses in an office, behind a door, or in a drawer.
• NO MINOR WARNING SIGN DISPLAYED. LED will check for a minor warning sign and make sure it is displayed in a location, visible to the public, with unobstructed views. CRA can provide members with this sign free of charge.
• INVOICES AND RECEIPTS FOR LIQUOR PURCHASES CANNOT BE LOCATED OR ARE DISORGANIZED. LED will ask to see invoices and receipts for all liquor purchases made by the licensed establishment. Licensees must have the current and previous three years' invoices and receipts for all liquor purchases on-site. The law implies the invoices must be the original, but LED will allow you to provide copies or scans. Local enforcement may require you to provide the originals – be sure to check with your local licensing authority. It is recommended that you file your invoices and receipts by distributor or retail purchase in separate files, by year. Disorganized records can be a red-flag for inspectors.
• REGISTERED MANAGER IS NOT UP TO DATE. LED will check to see if the manager of the establishment(or the person performing the tasks of a manager) is the person registered on the liquor license. The establishment’s manager is required to be named on the license through the local and state licensing authority. If the manager of an establishment changes, the licensee has 10 days to notify the local licensing authority and 30 days to notify the LED.
• FOOD IS NOT BEING SERVED PER YOUR LICENSE REQUIREMENTS. LED is going to ensure that the appropriate food is available for purchase depending on the type of license the establishment has. Hotel and restaurant licensees must serve meals between the hours of 8am and 8pm and at least meals or light snacks and sandwiches served after 8pm while the establishment is open and serving drinks. Tavern licensees must serve light snacks or sandwiches whenever the establishment is open and serving drinks.

​If you’re thinking of starting a business (or already have a business in the works), make sure that the name you use is not already taken.  Original names are essential for three reasons:  marketing power, clarity, and trademark infringement avoidance.  For example, if you’ve decided to open a coffee shop, it’s fairly easy to determine that the name “Starbucks” is not an option.  But, what about “Smith’s?”  And what happens if the “Smith’s” trademark is an auto insurance company in your town? 
 
What’s Really in a Name When it Comes to Business Trademarks?
 
Before attempting to trademark your business’s name, find out if the name is available on the U.S. Patent and Trademark Office’s website.  TESS, the Trademark Electronic Search System database, will indicate whether someone else has already claimed the name or symbol you want to use. 
 

• While U.S. trademark protection is granted to the first company to use it in its operational geographic area (regardless of registration), a company that grabs the trademark first will generally have a stronger case in court.

 

• In some situations, the similarities between names or symbols may be negligible.  That’s where an experienced business attorney with intellectual property experience can help. 

 
Often, there’s generally a way to accommodate both companies – especially when it comes to businesses with similar names, but dissimilar products (the “Smith’s” example above); those whose geographical locations may not conflict; and those whose names are too generic (for example, “The Clothing Store”).
 
Domain Extensions as Trademarks
 
In today’s marketplace, many businesses have both a physical location and an online presence.  The question then becomes whether to trademark the company name (for example, Amazon), the URL (www.amazon.com), or both.  It’s generally recommended that companies with an internet presence not register their web extensions (such as .com, .net, etc.) with their name unless planning to register the mark both with and without the web extension.  The reason is that other businesses registering the same name can do so by just adding a different (non-registered) extension and cause a great deal of confusion for customers.
 
A prime example is Craigslist.  The multi-purposed classified ad site is technically a “.org” site, but those who searched for craiglist.com or craiglist.net were often led astray.  The company now has trademarks for all, so typing in the latter extensions now brings you to the main .org site.
 
If you have questions about business trademarks, call our office and we’ll guide you through trademark protections so your business and your efforts are protected.

​You and several friends start a new business and decide to operate it as a limited liability company (LLC). Now that you’ve completed the  first step—choosing a business entity—it is now important to prepare an operating agreement. The operating agreement is a contract which governs the operations of the LLC and sets forth the arrangements made among the members, including their rights and responsibilities upon the withdrawal of a member.  Although departure from the business may be the last thing on anyone’s mind, it is important to plan ahead. A non-competition, or non-compete, clause can help protect the company from harm inflicted if a former member decides to form a competing business.
What Is a Non-Competition Clause?
A non-compete clause protects business assets like goodwill, confidential information, and trade secrets by preventing the former member from using the knowledge gained while participating as a member of the LLC to compete against the LLC.
If the operating agreement contains a non-compete provision, a former member can be precluded from engaging in a similar type of business directly or indirectly in competition with the LLC. If the operating agreement does not contain such a clause, the former member is free to compete with the LLC.
In addition, the non-compete clause may prevent the member from soliciting the LLC’s clients or customers for business. Usually, such provisions take effect after the relationship has ended, although they sometimes may preclude members from competing with the LLC during their membership in the LLC.
Because non-competition provisions place restrictions on the former member’s ability to secure future employment, they will only be enforced if they are not unduly burdensome. Consequently, they must only restrict competition for a reasonable period of time and in a reasonable geographic area, Additionally, the scope of the services the former member may provide in a competing business must not be unduly restricted.

• Note that the standards for the enforceability of non-compete clauses vary from state to state, so it is important to work with an experienced business planning attorney to ensure your non-compete clause and LLC operating agreement are enforceable. For example, in some states, the LLC statute imposes a duty not to compete on managers and members that must be explicitly waived in the operating agreement to avoid applicability.

Does My LLC Really Need One?
Members of LLCs often have intimate knowledge of the business, such as its trade secrets, confidential information, and customer lists. If  members are permitted to compete with the business immediately after they withdraw, and in the same geographical location, the financial success of the original business could be jeopardized.
Although many LLCs are formed by small groups of friends or family members who get along well and trust each other in the beginning, you cannot ignore the possibility of a dispute arising in the future. Circumstances can change, and it is important to try to prevent disagreements from undermining the success of your business. Including a non-compete clause in your operating agreement will help ensure your business is protected against a preventable harm.
We Are Here to Help
If you are interested in protecting your new or existing LLC, we can help you draft or amend your operating agreement to include key provisions such as a non-compete clause, as well as others specifically tailored to meet your business’s needs. Please give us a call today to set up a consultation.

The LLC is a popular way to structure a business because it provides personal liability protection to the members-- like a corporation does to its shareholders--but without as many administrative formalities. But if you’re an LLC member, don’t let this lull you into complacency. 
 
As a business owner, you’re responsible for the proper governance of the LLC.  If a conflict arises—either among LLC members or between the LLC and a third party—the governing documents and methods through which the owners govern the LLC may help prevent a conflict from escalating into litigation. Even if a dispute reaches court and you are unable to control the outcome, you can ensure that the LLC presents clear evidence of its intent and purpose by practicing good governance.
 
Good LLC governance hinges on four key practices:
 

1. Practice good recordkeeping.
   -Document key business decisions.
   -Store records in a secure and fireproof location.
   -Provide members with access to records as required by the LLC’s operating agreement.
   -Keep the list of members and their ownership interests current.
   -Keep the LLC records organized.
   
   
2. Don’t commingle LLC and member assets.
   -Keep all member and LLC assets completely separate. The initial contributions that members make to the LLC and any later contributions made after a capital call should be clearly documented as such.

-Make sure any loans to the LLC—and the repayment terms—are clearly documented.
-All distributions and any advancements to members should be documented as such.
-Members who are also employees of the LLC should receive a paycheck from the LLC payroll account like any other employee would.

1. Follow the operating agreement.
   -Do what you say you’re going to do.  Your LLC should have an operating agreement even if your state’s LLC statutes don’t require one.  A well-drafted operating agreement provides a written record of owner expectations in terms of LLC structure and ownership, as well as business, operations.  The agreement is an essential tool for keeping the peace among LLC owners and restoring the peace if a disagreement arises.  And, if a dispute arises between the LLC and a third party, the operating agreement may become evidence the fact finder considers to resolve the dispute. 

 

1. Amend the operating agreement if the LLC is acting inconsistently with it.
   -If the LLC ends up in court and the intent of the LLC or its members is at issue, the fact finder will look at three main factors to make a determination:  the LLC documents (the articles of formation filed with the state, the buy-sell agreement, if any, and the operating agreement), and the actions of the LLC and its members. 
   -When the actions of the members and of the LLC are in sync with the governing documents, a court is more likely to find an intent that corresponds to the original intent of the members when they formed the LLC.  But when the operating agreement says one thing and the LLC or its members behave differently, intent is wide open for interpretation.  If that happens, a court may place greater weight on the actions of the members or LLC and make findings of fact vastly different from what is found in the LLC documents, resulting in a potentially disastrous outcome.

 
Practicing good governance of the LLC helps make the intent and purpose of the LLC clear to its members and to outside parties.  And, if a conflict goes to court, good governance provides the judge or jury with a clear picture of what the members intended for the LLC.
 
We work closely with business owners to create and implement forward-thinking business-planning strategies.  We anticipate what can go wrong and counsel our clients on how to best maintain their businesses so that they are well prepared to weather any storm. 

Now that it’s tax season, you may be concerned how the Tax Cuts and Jobs Act, enacted in December 2017, will impact your small business. The reforms represent the most sweeping tax overhaul in 30 years and could have a positive impact on your business’s bottom line—but they may have left you feeling a little confused. Here are some of the most important changes.

Qualified Business Income Deduction
Under the new tax law, many owners of pass-through businesses, such as sole proprietorships, partnerships, and S corporations, may deduct up to 20% of their qualified business income. This new deduction—known as the qualified business income deduction or Section 199A deduction—can be claimed by eligible taxpayers on their 2018 federal income tax returns, lowering their taxable income. One notable exception is that married owners of service-based businesses like accounting firms or doctors’ offices, can only claim the deduction if they have an annual income below $315,000 ($157,500 for single business owners). This deduction replaces the domestic production activities deduction, which allowed business owners to write off 9% of income derived from qualified domestic manufacturing and production.

Lower Corporate Tax Rate
The centerpiece of the new tax law is the reduction of the corporate tax rate from a top rate of 35% to a flat rate of 21%, a substantial cut for many businesses structured as C corporations. However, because the reforms eliminated the 15% rate on the first $50,000 of taxable income, some small C corporations could end up with a bigger tax bill. For example, a C corporation with $50,000 of taxable income that would have owed $7500 under the prior law will owe $10,500 when it files its 2018 federal tax return.

100 Percent Expensing for Qualifying Business Assets
Businesses can now write off the entire cost of most depreciable business assets in the year the business places them in service, resulting in reduced current income tax liability. This break generally applies to depreciable assets with lives of 20 years or less--items such as, machinery, computers, and furniture. This part of the tax reform law is temporary, lasting until 2022 and then phasing out over several years.

Increased Depreciation Allowances for Vehicles
Businesses that purchased new or used vehicles after September 27, 2017 and placed them into service in 2018 can claim an increased maximum allowance of $10,000 for Year 1 or $18,000 if first-year bonus depreciation is claimed.  For year two, the cap is $16,000 and for year three, $9600. For year 4 and all subsequent years until the vehicle is fully depreciated, the cap is $5760. For 2019 and beyond, the allowances will be indexed for inflation. In addition, for qualified new and used heavy SUVs, pickup trucks and vans purchased for the business, 100% of the cost can be written off, a significant improvement over the prior law.

Family Paid-Leave Credit
Under the new law, certain eligible employers who provide paid family and medical leave to their employees during the 2018 and 2019 tax years may qualify for a new business tax credit. To be eligible, employers must comply with a laundry-list of conditions, including having a written policy, providing at least two weeks of leave, and paying at least 50% of the wages normally paid to the employee. The credit is equal to 12.5% of the amount of wages paid during the employee’s time of leave. However, a larger credit is available for employers that pay over half the employee’s normal wages while they are on leave.

Some Deductions Eliminated or Reduced
Although many of the reforms result in tax savings for small businesses, some, like the elimination or reduction of certain deductions, could have a negative impact on their tax bills. Although there are many changes, here are some of the most impactful.

• Entertainment. The tax write-off for business-related entertainment expenses was eliminated in the new tax law. However, business owners can continue to deduct 50% of the cost of business meals if certain conditions are met, and the cost of holiday parties can still be fully deducted.

 

• Qualified transportation. Under the new tax law, a business owner generally can no longer deduct the expenses of providing tax-free transportation fringe benefits (like the cost of parking or transit passes) or expenses incurred providing employees with transportation for commuting.

 

• Net Operating Losses (NOLs). The new law does not eliminate but does lower the deduction for net operating losses, which are losses taken in a period where a business’s allowable tax deductions are greater than its taxable income. NOLs can now offset only 80% of taxable income in the future, and carrybacks are generally no longer permitted. However, NOLs can be carried forward indefinitely under the new tax law, which is an improvement over the 20-year limitation under the prior law.

 
Estimated Taxes
The owners of pass-through entities such as sole proprietorships, partnerships, and S corporations may be required to pay estimated federal taxes each quarter unless they had no tax liability the prior year or owe less than $1000 when they file their tax return. Because of the changes in the income tax rates,  changes to deductions, credits and exemptions, the amount of estimated taxes that should be paid is a trickier question than in previous years.
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What to Do Next
The new tax reform legislation is complex and sweeping. We’ll be happy to help you understand its impact on your business and provide guidance about how to maximize your tax savings. Please contact us to schedule a meeting.