Legal Structure

A General Partnership involves two or more people who operate a business together. The partnership is created by filing a Statement of Partnership Authority with the Secretary of State. A general partnership may be converted to a limited liability partnership.

• General partners share unlimited personal liability for the obligations of the business. The partners’ personal assets may be used to satisfy creditors, including debts incurred by only one partner.
• Does NOT provide liability protection.
• Business operations are governed by the terms of a written Partnership Agreement created by an attorney in accordance with Idaho law.
• When a partner leaves the business, she/he files a “Statement of Denial” or a “Statement of Dissociation” with the Secretary of State’s office. An attorney will then need to amend the Partnership Agreement to reflect the change.
• Partners share in the profits and losses of the business according to the terms of the Partnership Agreement. Profits are taxed as personal income.
• A partnership representative must be designated with the Internal Revenue Service each year. The representative has the sole authority to act on behalf of the partnership should an audit occur.
• Partnerships end with the death, retirement, expulsion, incapacity, or personal bankruptcy of one partner unless the Partnership Agreement states otherwise. Partnerships are governed by the Idaho Uniform Partnership Act.

Foreign Partnerships: Partnerships organized in another state and wishing to do business in Idaho can file a Foreign Registration Statement with the Secretary of State.

Caution: Under Idaho law, a legally binding partnership may be created orally, in writing, or by the actions of two or more parties. Individuals who engage in a common effort to make and share profits from a business activity or businesses that represent themselves to the public as partnerships may have created a legal partnership, even if they have not registered as a Partnership with the Secretary of State. Creating an unintentional or implied partnership could have serious legal or financial implications.

Most often formed by professional businesses, such as doctors, lawyers and CPA firms. Provides individual partners limited protection from personal liability for the acts of the partnership and/or the acts of one partner that might negatively affect all partners (misconduct, negligence, etc.). The partners continue to share liability resulting from general activities of the partnership.

• An attorney creates a written Partnership Agreement to govern the general affairs of the business.
• Is a separate legal entity from its members (must have at least two members)
• Taxed like a general partnership
• Individuals or an existing general partnership may elect to become an LLP or PLLP by filing a “Statement of Qualification” with the Secretary of State’s office.

Consists of two or more individuals who jointly own a business in an unequal capacity. The limited partner/partners are generally financially liable for debts only to the extent of their financial investment in the business. They usually have limited or no control over management of the company. The general partner/partners manage the company and face the greatest potential risk and reward from business operations. Silent partners are limited partners.

• Formed by filing a “Certificate of Limited Partnership” with the Secretary of State’s office. The limited partners (or silent partners) do not need to be identified. (They must be identified if applying for an alcohol license.)
• To protect the interests of both the limited and general partners, an attorney creates a Partnership Agreement detailing the terms and responsibilities of each partner.

This is the most complex entity type to establish. Legal assistance is generally required to create Articles of Incorporation and Bylaws to manage corporate affairs. Several types of corporations are recognized in Idaho including C, S, Non-profit, and Professional Service Corporations. Each is discussed below.

• Is a separate legal entity from its owners (shareholders) and may be privately or publicly held. (Publicly held corporations issue stock to the public.)
• Controlled by a Board of Directors, which is in turn controlled by the corporation owners (shareholders). Though a corporation is a separate legal entity from the owners, it is possible to “pierce the corporate veil of protection” if a business owner (incorporator) personally co-signs a lease or loan agreement, pledges personal assets as collateral for a loan, or fails to keep business and personal finances separate. The owners can also be held personally liable if the corporation fails to pay employment taxes to the IRS, including Social Security and Medicare.
• May issue stock.
• Corporate profits may be taxed twice if the corporation issues dividends – once as income to the corporation and once as a dividend to the owners (shareholders).
• Must hold annual meetings, keep minutes of meetings, and file reports of activities.
• Is dissolved by a vote of the shareholders, by court order, or administratively dissolved for failure to return the annual report to the Secretary of State’s office. (See the Glossary for an explanation.) Corporations must keep their address and email current with the Secretary of State’s office or risk being administratively dissolved when their annual report form is returned by the Post Office or an email is not received. The Post office cannot forward report forms. If a corporation is administratively dissolved, the process to become reinstated can be time-consuming and there is a cost. The business will lose liability protection and owners will be personally liable for the actions of the business until the situation is resolved.

Registering a Foreign Corporation: Corporations registered in another state and wishing to conduct business in Idaho can register as a foreign corporation by filing a Foreign Registration Statement.

Unemployment Tax Payments: If the corporation owner/owners are also shareholders and actively work in the business, they must report a fair market wage before taking distributions or dividends that are not taxable as wages. Many business owners do not realize that they are considered employees if they work in the business. All corporations whose owner/officers provide services must open an unemployment insurance tax account with the Idaho Department of Labor and either report wages or opt out as a corporate officer. For details, contact your nearest IDOL office.

Offers the protection of a corporation with the flexibility of a partnership.

• Profits and losses pass through to the owners as if the business were a partnership.
• Files “Articles of Incorporation,” adopts Bylaws, and holds regular meetings. In Idaho, the same forms are used to establish an S corporation and a C corporation.
• Cannot be owned by more than 100 individuals (shareholders) and cannot be owned by another corporation, partnership, or a non-U.S. citizen or resident.
• To qualify as an S Corporation, the owners file Form 2553 with the Internal Revenue Service indicating their tax reporting status. If the S Corp ceases to exist, both the IRS and the Idaho Secretary of State’s office must be notified.
• Some business types, including financial institutions and insurance companies, cannot be organized as S Corporations. See the IRS website for details.
• May issue stock (restrictions apply).
• S-corp shareholders report income and losses to the IRS by filing a Schedule C with their personal tax return.

• Files its own income tax returns and owners (shareholders) are taxed only if dividends are paid to them.
• Can be either privately or publicly held. If stock is issued to the public, the Idaho Department of Finance must be notified. The U.S. Securities and Exchange Commission must approve the stock issue.

Exists to provide a community service. Funding comes from donations and grants received from corporations, foundations, individuals and government agencies.

• Non-profits first register a business name and entity type with the Idaho Secretary of State. They then apply for and seek to maintain tax-exempt status from the Internal Revenue Service. Once tax exempt non-profit status is granted the organization then amends their registration with the state. The process is time-consuming and expensive, so be certain your business qualifies before applying. An attorney or CPA can prepare and file the application. For details see Before Applying for Tax Exempt Status and Starting Out.
• After obtaining IRS approval, the non-profit registers in Idaho as a non-profit. To reserve a name while awaiting IRS approval, “Application for Reservation of Legal Entity Name” can be filed.
• The “Articles of Incorporation” must contain a clause stating the specific purpose of the business and a provision for the disposal of assets should the non-profit cease to exist.
• Tax reporting requirements are found on the IRS website.
• Non-profits engaged in the solicitation of donations from the public must comply with the “Idaho Charitable Solicitations Act.”
• Closing/Selling: If you close your non-profit, sell it or convert it to a for-profit entity, you must notify the Idaho Attorney General’s office. The Idaho Charitable Assets Protection Act governs how you can legally dispose of the assets of the non-profit.

Individuals serving on the board of a charitable organization have specific obligations under Idaho law. See the Idaho Attorney General’s booklet, “Service on an Idaho Non-profit Board of Directors.”

Registered by individuals engaged in a limited number of professions, such as medical, dental or legal. A list of qualifying business types is available from the Secretary of State’s office. Created by filing Articles of Incorporation Professional Service Corporation.

Registered by homeowners associations, sports leagues and a few other organizations that offer a benefit to a large group of individuals and whose officers or agents change regularly. The purpose of registration is to identify a contact person, known as an Agent for Service of Process, for legal proceedings. Whenever the contact person changes, the Secretary of State’s office must be notified.

Provides the liability protection of a corporation and the federal tax benefits of a partnership or sole proprietorship. Formed by filing a “Certificate of Organization” with the Secretary of State’s office. A few business types, including banks and insurance companies, cannot be LLCs.

• Operates under a legal contract between the owners called an “Operating Agreement.” All LLCs, including single member ones, need a legal Operating Agreement created by an attorney that conforms with Idaho law. If an agreement is not created, the business is governed by the “Idaho Uniform Limited Liability Company Act,” which may not be in the business’s best interests.
• The individual owners, called governors, members or managers, are protected from personal liability for the acts of the company. They are not personally liable for debts, obligations, or liabilities created by the company unless one of the business governors/owners/managers engages in activities that “pierce the veil” of protection.
• The veil of protection from liability is “pierced” when an owner signs or co-signs a lease, loan application or another legal document, pledges personal property as collateral for a loan or fails to keep business and personal finances separate. The IRS can also hold the business owners/managers personally responsible for failure to remit taxes withheld from employee wages, including Social Security and Medicare payments.
• Taxed like a sole proprietorship (if one owner) or a partnership if multiple owners. Members of an LLC are considered self-employed and must make self-employment tax payments.
• A single member LLC terminates upon the death, retirement, incapacity or bankruptcy of the owner or by court order. A multi-member LLC terminates in accordance with the terms of the LLC’s Operating Agreement, a court order or state law. The Idaho Secretary of State’s office must be notified of termination by filing the appropriate form. Business assets are liquidated and distributed in accordance with the terms of the Operating Agreement or by court order.
• An LLC can lose its status if the annual report is not returned to the Idaho Secretary of State’s office in a timely manner. See Administratively Dissolved Corporations and LLCs.
• Some types of businesses, such as banks and insurance companies, cannot be formed as LLCs.

The Internal Revenue Service does not recognize LLCs as a unique tax reporting entity. (LLCs are created by state, not Federal, law.) Therefore, taxes are reported in the same manner as a corporation, partnership or sole proprietorship (called a disregarded entity), depending on the size and complexity of the LLC. See the IRS website for details.

Registering a Foreign LLC – An LLC formed in another state can register to do business in Idaho by completing a Foreign Registration Statement.

Changing the Registered Address or Agent, Dissolving an LLC – Contact the Secretary of State’s office for information and access to the correct form. An LLC must have a current address and email address on file with the Secretary of State’s office or risk being administratively dissolved when its annual report form is not returned. The Post Office cannot forward annual report forms. If your LLC is administratively dissolved and you want to reinstate it, contact the Secretary of State’s office for information. There is a cost to be reinstated.

LLCs whose members offer a professional service (18 professions qualify) can register as PLLCs. Contact the Secretary of State’s office for details. A list of acceptable professions is found on the application form. To find the form on the Secretary of State’s website click on Certificate of Organization Limited Liability Company.

When a business closes, the Secretary of State’s office must be notified. The Internal Revenue Service (IRS) and the Idaho State Tax Commission should be notified to be certain accounts are closed and final tax payments made. If the business has employees, the Idaho State Tax Commission and the Idaho Department of Labor should be contacted to be certain state tax, withholding and unemployment accounts are closed. Any permits and/or licenses the business has need to be cancelled, including a sales and use tax permit and a local business license.

Bankruptcy:  If a business closes due to bankruptcy, see the IRS website for information.

Property Tax: If the business pays property tax on equipment to their county assessor, they may need to pay any prorated tax due.

Corporations and Limited Liability Companies (LLC) file an annual report form with the Secretary of State’s office. The purpose of the report is to notify the Secretary of State that the business is still active and to provide the names of current owners or members. Failure to return the form by the due date can result in the business being administratively dissolved (the liability protection afforded by being a corporation or LLC is revoked and the owners assume personal liability for the business).

When the report is due, the Secretary of State’s office mails or emails a notice to the company’s address or email of record. The report can be returned by mail or completed on-line. If not returned within 60 days of the due date, a warning notice is sent. Continued failure to respond will result in the business being administratively dissolved.

If your business is administratively dissolved, contact the Secretary of State’s office to find out how to reinstate the business. Reinstatement requires time and money. During the suspension the business and its owners become personally liable for any issues that might arise. The business still exists, but loses its liability protection and functions like a sole proprietorship. It is particularly important to understand that your business is NOT closed.

Important: Annual report forms cannot be forwarded by the Post Office. It is the business owner’s responsibility to keep all contact information up to date with the Secretary of State’s office or risk having the business administratively dissolved.

Foreign corporations, LLCs and partnerships desiring to apply for a “Certificate of Authority” to do business in Idaho must submit an application and a “Certificate of Existence” from their home state indicating the business is currently in good standing in that state. The “Certificate of Existence” is obtained from the office or agency in the state where the business is legally registered within 90 days of the date of registration in Idaho.

Foreign corporations, LLCs and partnerships file a Foreign Registration Statement to do business in Idaho. If a registered foreign entity ceases doing business in Idaho, a “Withdrawal of Foreign Registration Statement” or a “Cancellation of Certificate of Authority” must be filed. Contact the Secretary of State’s office for information.

Registered agent: Foreign entities must appoint a registered agent to represent their interests in Idaho. A registered agent is an Idaho resident who can receive legal notices on behalf of the business. It may be an individual, an attorney or a business that specializes in acting as a registered agent.

Out of state corporations or LLCs having an employee living in Idaho but not actively soliciting business in Idaho (the employee is doing only administrative work from home for an out of state business) can register the corporate name using “Application for Registration of Foreign Name.” The name can be registered for a year or by month. Registration notifies the State that your company has a presence in Idaho.

When a business changes from one entity type to another (such as from an LLC to an S Corp), the new registration needs to be filed with the Secretary of State’s office. An attorney may be needed to assure that documents are completed correctly, the old entity is dissolved, and an Operating Agreement, Articles of Incorporation, Partnership Agreement or other required documents are completed. Contact the Idaho State Tax Commission and the Internal Revenue Service (IRS) if the business’s tax reporting method changes. If the business has employees, the Idaho Department of Labor and the Idaho State Tax Commission should also be notified to update unemployment and withholding accounts.

A corporation can “convert” to an LLC to take advantage of the tax benefits of an LLC by filing a “Statement of Conversion” with the Secretary of State’s office. Conversion is complex, so legal and financial advice should be secured to assist with filing the necessary paperwork, dissolving the corporation and creating a legal Operating Agreement for the LLC. The IRS and State Tax Commission need to be notified, as well as any agencies from whom permits or licenses have been secured. If the business has employees, the Idaho Department of Labor and Idaho State Tax Commission need to be notified.