Over the years, I have met with many individuals who are in the process of forming a corporation or limited liability company (LLC). Typically, those individuals have developed or acquired some business assets and are in the process of launching their business. Those assets may include cash, a building, equipment, vehicles, a patent, a trade name, or any other types of business asset. Often, the business owner owns some or all of the assets in his or her own name. So when he or she forms a corporation or LLC, an elemental question naturally comes up: How does my business asset become part of the corporation or LLC?
The simple answer is that you have to take action to put the asset into the corporation or LLC. Remember that a corporation or LLC is considered to be an artificial entity with an existence separate and apart from its owners; it is treated as if it is another person. So you have to enter into one or more agreements with your entity. It may feel like you are standing in front of a mirror talking to yourself. But in the eyes of the law, you are transacting business with a separate entity.
There are two main types of transactions in which you can place your business asset into your corporation. The first type of transaction is one in which you contribute a business asset to your corporation in exchange for equity, i.e., stock in the corporation. The person who created the corporation enters into a “subscription agreement” with the corporation whereby the corporation issues a certain number of shares of stock to the owner in exchange for cash or some other business asset. The process is similar for a LLC, except the LLC gives its owner a percentage ownership interest, which is sometimes called a membership interest, instead of shares of stock.
The other of type of transaction is a non-equity transaction in which the business owner sells a business asset to the corporation or LLC in exchange for cash or a promise to pay cash. Of course, the variations are limitless. Perhaps the owner leases or licenses the asset to the corporation instead of selling it. Also, the corporation might pay for the asset in some way other than cash.
In either of these scenarios, the idea is the same—the owner and the corporation (or LLC) enter into an agreement with each other to transfer the business assets into the entity.
You may be shocked to learn that some business owners neglect or delay to put the business assets into the corporation. Maybe the owner signed a building lease in his or her own name before forming the entity. Maybe the business owner runs all of the business transactions through his or her personal bank account instead of establishing and funding a corporate bank account. Needless to say, this is a mess and deprives the business owner of the benefits of having the corporation. This is an area where you can save a lot of money and trouble by consulting my office early in the formation process.
Also, if you are considering buying an interest in a corporation, part of your due diligence is to determine the precise assets that the corporation owns. You or your attorney has to look at the original contracts to find out what assets the corporation owns. Please call me before you invest. It is much less expensive to conduct this due diligence beforehand than it is to learn after the investment that the corporation in which you invested does not own what you thought it owned.