Business Structure – Sole Trader, Partnership, Trust, Company …?

by Andrew Lind on February 1, 2009

Andrew Lind
Andrew Lind

What is the best legal structure for my small business?

Our Business Lawyers with lawyers in Brisbane & on the Gold Coast can help you answer that question.

The answer is going to depend on your circumstances and factors like -  the type of business, the size of the business and your plans for the future.

Here is some information to get you started.

Sole Trader

Definition: As a sole trader you are the sole business owner and trade in your own name. (e.g. Fred Smith Plumber).

  • Name – You can usually trade in your own name without having to register a business name
  • Simple – your customers / clients know precisely who they are dealing with
  • Staff – sole traders can have staff. You do not need to all the work
  • Tax – you pay tax at your personal marginal tax rates
  • GST – the GST rules still apply
  • Risk – your personal assets are at risk from liabilities you may incur in the business

Partnership

Definition: A partnership is two or more persons carrying on a business together with a view to a profit.

  • Name – You will usually have to register a business name
  • Partnership Deed – You and your partner(s) need to be clear about your obligations and rights
  • Tax – the partners pay tax at their respective tax rates
  • Risk – partners are generally personally liable for the liabilities that arise in the business
  • Rest – a partner can make it possible to take a break

Trust

Definition: A trust is a relationship where the trustee carries on a business for the benefit of certain benificaries.

  • Trustee – A trust can only conduct business via a trustee. A trustee can be a natural person(s) or a company
  • Type – there are different types of trusts – discretionary (family) trusts, unit trusts and hybrid trusts
  • Tax – Income splitting – the trustee can split income to beneficiaries with tax paid at their respective tax rates
  • Asset protection – trust assets and personally owned assets can often be kept separate. Careful consideration in drafting of the trust is needed here.
  • Penal tax  – penal tax is levied on retained earnings

Company

Definition: A company is a legal person (apart from its directors and shareholders) providing limited (”Ltd”) liability protection.

  • Single director and shareholder is all that is needed
  • Tax – a flat 30c in the dollar tax rate applies
  • Asset protection – company liabilities generally remain in the company
  • Retained earnings – can be accumulated (and only taxed at the 30c in the dollar flat tax rate)
  • Dividend franking – dividends can be franked or unfranked

More >> Checklist for starting a small business in Australia | Our Business Law services | www.corneyandlind.com.au

{ 60 comments… read them below or add one }

Andrew Lind October 14, 2009 at 1:53 pm

This would mean that you would transfer the business which may have Capital Gains Tax and possibly Stamp Duty implications. Better to get the structure right from the start.

Andrew Lind October 14, 2009 at 1:55 pm

Hi Lachie – as indicated by me email – this will require specific advice. Let me know if I can help with that.

Josh March 15, 2010 at 10:24 am

Hi, i’m in the process of setting up a business. there will be 3 of us going into this equally. I need to know the advanage and disadvantages of a single trust with three trustees or 3 seperate trusts. thanks josh

Andrew Lind March 15, 2010 at 3:43 pm

Hi Josh

I recommend that the three of you keep a one hour teleconference with me during which the pros and cons can be considered. I will send you an email about costs.

regards
Andrew Lind

angus April 3, 2010 at 1:57 pm

If I and three other lawyers were considering entering into a trading trust, could you outline the benefits and appropriateness for me, taking into consideration that we have already leased a building to undertake practice in and we wish to employ other lawyers together, as well as share any profits made.

Bart May 3, 2010 at 10:13 pm

Hi,
I’m keen to start up a engineering and design service which I plan to carry out along side my full time job. Sole trader, company? I’m really not sure. Can you make any suggestions?

Andrew Lind May 7, 2010 at 5:44 pm

A 30 – 60 minute consultation by phone or in person is needed to unpack this. I would be happy to do this. However your accountant is probably the best person to start with on this.

If I can help please contract our Client Services Manager and she can eplain how our costs work.

Andrew Lind May 7, 2010 at 5:50 pm

Sorry for the delay in response but I have been away. A 30 – 60 consulation by phone or in person is needed for this. Please contract my client services manager if you would like to book this in.

Shahid July 14, 2010 at 12:31 pm

Hi,

I’d like to become a partner with an established company. I don’t know if it is beneficial to keep the company name and work as Group or to change the company name.

They have a lot of business and my work is separte to their current speciality so what is your opinion?

Andrew Lind July 19, 2010 at 9:51 am

Great questions. This is going to require some specific tailored legal and accounting advice on issues such as:

- Quarantining of risk (present and future)
- GCT and stamp duty issues
- Existing assets and contracts and the cost of moving them or leaving them intact
- Future succession plans

Our business lawyers and commercial lawyers would be happy to help. I suggest that the starting point is a one hour teleconference which can be arranged through our Clients Services Manager.

regards
Andrew Lind

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