Proprietorship, Partnership or Incorporation?

From a legal viewpoint, there are three common types of businesses:  sole proprietorship, partnership and corporation. Each has different implications for liability, taxation and succession. A lawyer or an accountant can advise you on which form is best suited to your needs.

1. Proprietorship

This is the simplest way to set up a business. A sole proprietor is fully responsible for all debts and obligations related to his or her business. A creditor with a claim against a sole proprietor would normally have a right against all of his or her assets, whether business or personal. This is known as unlimited liability.

In a proprietorship, one person performs all the functions required for the successful operation of the business. The proprietor secures the capital, establishes and operates the business, assumes all risks, accepts all profits and losses, and pays all taxes. The proprietor is said to be self-employed.

Advantages:

• low start-up costs;
• greatest freedom from regulation;
• owner in direct control of decision making;
• minimal working capital required;
• tax advantages to owner;
• all profits to owner.

Disadvantages:

• unlimited liability;
• lack of continuity in business;
• organization in absence of owner;
• difficulty in raising capital.

2. Partnership

A partnership is an agreement in which two or more persons combine their resources in a business with a view to making a profit.  In order to establish the terms of the partnership and to protect partners in the event of a disagreement or dissolution of a partnership, a partnership agreement should be drawn up. Standard form partnership agreements can be purchased at stationary stores. Partners share in the profits according to the terms of the agreement.

There are two types of partnerships: a general partnership and a limited partnership. In a general partnership, two or more owners share the management of a business, and each is personally liable for all the debt and obligations of the business. This means that each partner is responsible for, and must assume the consequences of the actions of the other partner(s).

The second type of partnership, a limited partnership, involves limited partners who combine only capital. They are not involved in managing the business and cannot be liable for more than the amount of capital they have contributed. This is known as limited liability.

A limited partnership also involves general partners, who are involved in management. They are fully liable for the debts and obligations of the business, but may be entitled to a greater share of the profits.

Advantages:

• ease of formulation;
• low start-up costs;
• additional sources of investment capital;
• possible tax advantages;
• limited regulation;
• broader management base.

Disadvantages:

• unlimited liability;
• dividend authority;
• difficulty in raising additional capital;
• hard to find suitable partners;
• possible development of conflict between partners;
• partners can legally bind each other without prior approval;
• lack of continuity.

3. Corporation

A corporation, also known as a Limited Company, is a legal entity which is separate and distinct from its members (shareholders). Each shareholder has limited liability. A creditor with claims against the assets of the company would normally have no rights against its shareholders, although in certain circumstances shareholders may be held liable. It is recommended that legal advice be sought. This type of business can be incorporated at either the federal or provincial level.

Ownership interests in a corporation are usually easily changed. Shares may be transferred without affecting the corporations existence or continued operation.

The following characteristics distinguish it from a partnership or proprietorship:

• Limited liability: normally no member can be held personally liable for the debts, obligations or acts of the corporation beyond the amount of share capital the member has subscribed.
• Perpetual succession: because the corporation is a separate legal entity, its existence does not depend on the continued membership of any of its members.

Advantages:

• limited liability;
• possible tax advantage (if qualify for a small business tax rate);
• specialized management;
• ownership is transferable;
• continuous existence;
• separate legal entity;
• easier to raise capital.

Disadvantages:

• closely regulated;
• most expensive form to organize;
• charter restrictions;
• extensive record keeping necessary;
• double taxation of dividends;
• shareholders may be held legally responsible in certain circumstances;
• personal guarantees undermine limited liability advantage.

For specific information on how or where to register or incorporate a business in the Yukon, contact:

Corporate Affairs
Department of Community Services
Government of Yukon
P.O. Box 2703
Whitehorse, YT Y1A 2C6
Telephone: (867) 667-5314
Toll Free (In Yukon): 1-800-661-0408, local 5314
Fax: (867) 393-6251
E-mail: corporateaffairs@gov.yk.ca
Web site: http://www.gov.yk.ca/depts/community/corp/index.html

DISCLAIMER
Information contained in this document is of a general nature only and is not intended to constitute advice for any specific fact situation. Users concerned about the reliability of the information should consult directly with the source, or seek legal counsel.

Links Policy
Some of the hypertext links lead to non-federal government sites which are not subject to the Official Languages Act and the material is available in one language only.