While there is no requirement that
you incorporate (or form an LLC) in the state where you do business, and
you can choose another state, there are good reasons for picking your home
state.
You may have heard it said
that you would be well advised to incorporate in Delaware, or in a state
with no corporate income tax (such as Nevada). Suffice it to say that the
purported advantages of incorporation in Delaware for the startup of a
small business are, like the reports of Mark Twain's death, exaggerated.
The fact that so many huge corporations are incorporated in Delaware speaks
primarily to Delaware law at the time those corporations were formed as
compared to the law of the other states, most of which have been subsequently
changed to eliminate the Delaware advantage.
If you are earning your income in a state where
there is no corporate income tax (that is, your base of operations and
physical facilities are in that state), you obviously benefit from incorporating
in that state. However, if you are earning your income in another state
(that is, your base of operations and physical facilities are in that state),
the laws of that state will require that you qualify as a foreign corporation
in that state, even if your state of incorporation is a no income tax state.
When you qualify as a foreign corporation in a state, you are subject to
the same laws (tax, reporting and otherwise) as apply to corporations initially
incorporated in that state and the tax or other advantages you might expect
from incorporating in the no income tax (or no reporting) state are illusory.
When it comes right down to it, if you are a small
corporation doing business primarily within one state, incorporation in
that state is advisable. You are subject to the laws of your home state
anyway, and if you incorporate in your home state, your costs will inevitably
be less than incorporating in another state, then qualifying that corporation
to do business as a foreign corporation in your own state. |