Vol. 13  No. 5 
May  2014 
Big Ideas for Small Business Newsletter
"Do not wait to strike till the iron is hot, but make it hot by striking."

~ W. B. Yeats (1865 - 1939), Irish Poet
 

 

Paying Employees in Property: What to Do About Employment Taxes?



Not every payment you make to employees must be in the form of cash. You may reward them with various fringe benefits, options or stock, or other property.

While many small businesses use outside payroll companies to handle withholding on employee compensation, it's up to you as the owner to understand the tax implications of your payments to workers.

Types of noncash wages
Paying employees other than in cash or a cash equivalent (e.g., check, direct deposit) is called an in-kind payment. It may be property or services provided by your company (e.g., a company laptop for personal or home use). The amount of the payment is determined by the fair market value of the property; special tax rules may come into play for specific items (e.g., stock options, company cars).

Payments of property (typically company stock) that have strings present special issues for the company and the employee receiving the property. If there is a substantial risk of forfeiture (called "restrictions"), the property is not immediately taxable to the employee; it becomes taxable when the risk ends.
Non-Compete Agreements: When to Use Them; How to Enforce Them
Your company has many valuable property interests that you can't see, feel, smell, or taste, such as your customer lists, trade secrets, and upcoming product launches. The best way to protect these and other interests from being used by employees after they leave your company is to have them sign a non-compete agreement (sometimes referred to as a covenant not to compete).

Before you begin, you have to know what interests can be protected, where you're going to protect them, and how to enforce the agreement. For this article I interviewed Nicholas Fortuna, an attorney and principal in the NYC law firm of Allyn Fortuna who litigates employment-related matters.

What Are Non-Compete Agreements?
These are contracts between an employee and the company that bars the employee after leaving employment from working for a competitor, and/or using protected company information on a new job, or setting up a competing business. Most states will enforce non-compete agreements that are not overly broad. California and a couple of other states will not, viewing all non-compete agreements for employees as void.

What interests can be protected?
The reason why you want to prevent employees from certain actions after they leave your company is to keep them from actions that could undermine or destroy your business. Whether and to what extent you can keep a former employee from working with a competitor, starting a competing business, or using your business information to his or her advantage depends on the facts and circumstances.


Should You Have Surety and Fidelity Bonds?
Surety and fidelity bonds are a type of insurance that provides protection and indemnification for actions related to your business. Essentially, the bonds make sure you (and your employees) keep promises -- to customers and clients, the government, or other parties. Some bonds protect you; others protect third parties. Understand the different types of bonds as well as when you must or should have them.

Types of bonds
Surety bonds are essentially three-party contracts where one party promises to perform on behalf of another, but if the action isn't done, proceeds from the bond are paid to a third party so that another company can be brought in to complete the promise.

In contrast, fidelity bonds are more like two-party contracts in that they provide protection for one party from the misconduct of the other party, even though the party that steals, embezzles, or commits other misconduct isn't a party to the contract.

Keep Reading...

Our Readers Ask

Q:  We're starting a technology company. Is it better to be a corporation (C or S) or an LLC?

A:  While corporations and LLCs offer personal liability protection, there are numerous other factors that come into play in deciding which type of entity is optimum for your situation. These include:
  • Employment taxes. For corporations, FICA taxes (for Social Security and Medicare) are paid only on taxable compensation. For LLCs, all of the net earnings are subject to self-employment tax (equaling the employer and employee share of FICA).
  • Raising capital. C corporations have it the easiest, with access now to equity crowdfunding and, ultimately, going public. Other types of entities may be restricted in how they raise capital.
  • Sharing ownership with employees. Corporations can issue stock to employees as compensation or enable them to purchase stock by issuing them options (incentive stock options or nonqualified stock options). They can also set up employee stock option plans (ESOPs) that enable employees to earn ownership interests over time in much the same way as savings in qualified retirement plans. Certain C corporations that give stock to employees as compensation or permit them to purchase shares may entitle employees to highly favorable tax treatment when they sell their shares. If the stock qualifies as small business stock and is held more than five years, then half of the capital gains are not taxed (if Congress reinstates the 2013 rule, then no gain is taxed). LLCs can share ownership with their staff, but it's more cumbersome to do so.
book_review

Book Review

 

Crowdfunding: A Guide to Raising Capital on the Internet 
Steven Dresner ~ Wiley ~ Hardcover: $60
  
If you're thinking about raising capital online using equity crowdfunding, be sure to understand the consequences of this action. The book explains the parameters of crowdfunding, how to prepare a successful crowdfunding campaign, and how to communicate with investors after raising capital in this manner.

The credited author of the book is the CEO of Dealflow.com, a company that provides software for deal marketing and analysis. Each chapter has been written by a different expert. My friend Karen Kerrigan, president of the Small Business & Entrepreneurship Council, contributed a chapter called "Understanding the Crowd."

The book is not an easy read; the topic itself is complex. However, it covers the essentials on the rules and regulations to follow if you seek equity investors online.

 


In This Issue
Paying Employees in Property: What to Do About Employment Taxes?
Non-Compete Agreements: When to Use Them; How to Enforce Them
Should You Have Surety and Fidelity Bonds?
Our Readers Ask
Featured Book Review
It's a Fact!

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