Business Law

Business succession planning is essential to any business for a number of reasons. These include:

1. Ensuring a smooth transition of ownership and management.
2. Maintaining continuity of operations in the event of the death or incapacity of a current owner or key executive leader.
3. Identifying and preparing potential candidates for key leadership roles.
4. Providing legal and financial protections for the business and its stakeholders.
5. Contributing to the overall success and growth of the business.
6. Ensuring compliance with relevant laws and regulations.
7. Maintaining peace in the family.

In North Carolina, businesses must adhere to various legal considerations and requirements when engaging in succession planning. 

In this article, the North Carolina business succession planning attorneys at Wilson Ratledge will outline basic succession planning options and some of the key legal considerations.

Legal Considerations for Succession Planning in North Carolina

There are several legal considerations that businesses in North Carolina must take into account when engaging in succession planning. These include:

a. Business Structure: The type of business structure, such as a sole proprietorship, partnership, or corporation, will determine the legal requirements and procedures for succession planning. For example, partnerships may require the execution of a partnership agreement outlining the terms of succession. At the same time, corporations may need to follow specific procedures outlined in the articles of incorporation and bylaws. S corporations in particular must adhere to IRS rules regarding eligible S corporation shareholders.

b. Transfer of Ownership: The transfer of ownership in a business is subject to various legal considerations, such as the execution of a buy-sell agreement and estate planning documents (wills and trusts) to implement the terms of a buy-sell agreement, orderly transfer of business interests, and planning for minimizing, while having liquidity for, the payment of any applicable taxes. It is important for businesses to seek the guidance of an attorney when engaging in the transfer of ownership to ensure compliance with relevant laws and regulations.

c. Management Succession: The process of transferring management responsibilities in a business can also be subject to legal considerations, such as the use of key-man (or key-person) life insurance, executive compensation, the joinder in a limited liability company operating agreement or partnership or limited partnership agreement. It is crucial for businesses to consult with an attorney to ensure that the management succession process is carried out as smoothly as possible and in accordance with the law.

North Carolina and Federal Laws Governing Succession Planning

There are several North Carolina and Federal statutes, many with related regulations, that businesses and business owners must consider when engaging in succession planning and implementing a succession plan; however, none of these spell out any automatic process in the absence of planning. These include (among others):

a. North Carolina Business Corporation Act

b. North Carolina Limited Liability Company Act

c. North Carolina Revised Uniform Partnership Act

d. North Carolina General, Limited, and Limited Liability Partnerships 

e. North Carolina (wills and estates 28A-31?)

f.  North Carolina Uniform Trust Code

g. Subchapter C of the Internal Revenue Code (Federal Taxation of C Corporations)

h. Subchapter S of the IRC (Federal Taxation of S Corporations)

i.  Subchapter K of the IRC (Federal Taxation of Partnerships)

j. Federal Taxation of Trusts

k. Federal Estate and Gift and Generation Skipping Tax

Tips for Successful Succession Planning in North Carolina

Here are some tips for successful succession planning in North Carolina:

a. Start Early: It is never too early to start planning for succession. By starting the process early, business owners can ensure that there is sufficient time to determine long term goals, identify and prepare potential candidates to own and lead the business in the future, and to implement the necessary legal arrangements.

b. Involve Key Stakeholders: Succession planning should involve the input and participation of key stakeholders, such as the current owner and potential future owners, key management personnel. This will help to ensure that the succession plan reflects the needs and goals of the business and all parties involved.

c. Communicate Openly and Transparently: Communication between potential successors and beneficiaries is often key to successful succession planning. This will also help avoid potential legal disputes, such as those involving a contest of the owner’s will in the case of a family business, or those involving disgruntled key management or other personnel. 

d. Seek Professional Advice and Assistance: Engaging the services of a professional advisor, such as that of a North Carolina business attorney at Wilson Ratledge, will guide you and help you navigate the many succession plan options and their legal and tax considerations. 

e. Put the Plan in Writing: This applies to everything.  We have mentioned a few crucial documents already, and successful implementation of your succession plan requires a package of clear and consistent documents that will work together to ensure the smooth transition of your small business as part of your overall estate plan.  The documents typically required include some combination of the following:

i. Buy-Sell Agreements (also known as Shareholder Agreements or Member Agreements)

ii. Wills

iii. Trusts (there are multiple options for trusts in succession planning)

iv. Operating Agreements

v. Partnership or Limited Partnership Agreements

f. Review and Update the Plan Regularly: Succession plans should be regularly reviewed and updated to ensure that they remain relevant and reflect the current needs and goals of the business and key stakeholders. 

Starting a business in North Carolina can be a great way to make money and provide your own unique service or product. However, there are a few things you should know before starting your business. In this article, we will discuss some of the most important things you need to know before starting a business in North Carolina. 

1. Choose a Business Idea and a Business Name

When starting a business in North Carolina, it is important to choose a business name and a business idea. The name should be unique and easy to remember, and the idea should be something that you’re passionate about. It is also important to do your research and make sure that the idea you have is feasible and has the potential to be successful.

2. Decide on a Legal Structure

There are many factors to consider when deciding on a legal structure for a business. Some of the most important factors include the amount of liability the business owner wants to assume, the tax implications, and the ease of dissolution. There are several types of legal structures businesses can choose from in North Carolina, including sole proprietorships, partnerships, limited liability companies (LLCs), and corporations.

3. Register the Business Name and Area of Specialization

When starting a business in North Carolina, the next step is to register the business name with the state. This can be done online or by mail. The next step is to choose an area of specialization for the business. This can be anything from retail to construction to professional services. Once these steps are completed, the business is almost ready to start operating in North Carolina.

4. Pick a Business Location and Check Zoning Regulations

When starting a business in North Carolina, it is also important to check the zoning regulations for the specific location you choose. This will ensure that the business is in compliance with all local ordinances and can operate without any issues. There may be specific requirements for the type of business that can be operated in a particular location, so it is important to do your research ahead of time. If you are unsure of what is required, it is best to contact your local zoning department for more information.

5. Obtain the Proper Permits and Licenses From The State

In order to start a business in North Carolina, one must first obtain the proper permits and licenses from the state. This process can be complex, as different licenses and permits may be required depending on the type of business being started. Some of the most common licenses and permits required include a business license, a sales tax license, and a zoning permit. It is important to confirm what licenses and permits are required for your specific business and to contact the appropriate state agencies for more information.

6. Obtain Insurance

Obtaining insurance when starting a business in North Carolina is important to protect the business from any potential liability. Businesses need a variety of insurance policies, such as general liability insurance, property insurance, and workers’ compensation insurance. By doing so, businesses are not only abiding by the law, but they are also protecting themselves from financial losses in the event of an accident or disaster.

7. Open a Business Bank Account

When starting a business in North Carolina, it is important to open a business bank account. This account will help you track your business finances and keep your personal finances separate. You will need to provide your business name, address, and federal tax ID number to the bank when opening the account.

8. Remember To File and Report Taxes

The North Carolina Department of Revenue and the Internal Revenue Service require all business owners to file and report taxes, regardless of the size or type of business. The departments provide a variety of resources on its website to help business owners understand and comply with the tax requirements. Failure to file and report taxes may result in penalties and interest charges.

Contact Our North Carolina Business Startup Law Firm

When starting and during operations of a business in North Carolina, it is important to work with a lawyer. A lawyer can help you understand the complex legal process involved in starting a business and can provide guidance on corporate law, contract law, and other legal issues that may arise. A lawyer can also help you negotiate and sign contracts, file trademarks, and patents, and protect your business’s intellectual property.

If you have any questions, it is best to consult with a North Carolina business startup lawyer at Wilson Ratledge, PLLC. Our attorneys can help you navigate the process and ensure that your business is set up for success.

An LLC is a limited liability company that allows a business to operate with a flexible structure and with fewer requirements than a corporation. Additionally, it provides protection to the individual operating the business and potentially offers tax savings. However, as an organization grows and changes so does its legal structure. 

Knowing when it makes sense to move from a single-member LLC to filing as an S corporation can aid you when the time comes to make this important change to the way your business is structured.

Company Growth

The size of the organization is a key factor in determining when it is time to move from an LLC to an S Corporation. An LLC is perfect for an individual who wants to flexibly manage their business without a board of directors. As the company grows then moving to an S Corporation should be considered.

An S Corporation allows room for a maximum of 100 shareholders. When your organization shifts from being operated by a single member or a small group of members to a large number of shareholders then it may be time to consider filing as an S Corporation.

Tax Benefits

When operating as a single-member LLC or a sole proprietorship, all profits from the business flow through as Schedule C income, and are taxed fully as self-employment income at a high rate. If the profitability of the business is high enough, moving to an S corporation can allow the owner(s) to take a salary, and then pay out additional profits as a distribution to save taxes. Profitability of the business as an S corporation will flow through to the owner(s) on a Schedule K-1.

Tax Preferred Retirement Savings

Establishing an S Corporation gives the taxpayer additional options and opportunities when it comes to saving for retirement. Once a taxpayer has an S Corporation they are able to set up a Solo 401(k). A Solo 401(k) is a 401(k) that is designed for a business with no employees. There are no age or income limitations or restrictions with the only requirement for establishing a Solo 401(k) being that you are a business owner with no employees. After the Solo 401(k) is set up an individual can contribute up to $61,000 with an additional $6,500 catch-up contribution if an individual is 50 years of age or older.

Desire For Shareholders

As a business grows and decides to expand it may decide to offer stock options. Once they begin selling stock the individuals who purchase equity in the company in this manner become known as the shareholders. An LLC does not have shareholders only members who share the profits of the business. An S Corporation can have shareholders who own stock in the business. An S corporation is permitted to have 100 shareholders at any given time.

Need to Complete Ownership Transfers

After it is established there are no restrictions on ownership transfers within an S corporation. Stakeholders are able to sell their shares of the company at any time. They have the option of using their shares to raise capital or to potentially attract new investors. There is no ability to offer stock as an LLC meaning there is no easy method of transferring shares of the company. An S Corporation allows for smooth transfers of ownership shares to multiple individuals over an extended period of time.

Ready to Establish a Board of Directors

The shareholders of an S corporation are not responsible for overseeing all of the activities of that corporation. The body responsible for that task is referred to as the board of directors. This board is elected by the shareholders so if an organization believes it is ready to establish its own board of directors it will need the shareholders of an S corporation to do so. These board members appoint officers and executives for the corporation, determine the mission of the corporation and decide the policies regarding the overall management of the corporation.

Our Raleigh Business Startup Attorneys Can Help

The shift from operating a single-member LLC to managing an S corporation can be a major one. Preparing to establish a board of directors, accommodating shareholders, and completing ownership transfers are all large steps that are vastly different from running a business as an LLC.

Knowing when you are ready to begin filing as an S corporation can make the change in filing easier for you to manage. The team at Wilson Ratledge has the experience and expertise to help your business grow the right way – contact us today to schedule a consultation!

Funding is always a challenge for small and growing businesses. There are a number of government grants and other forms of support for small businesses that can help you expand. Most of these programs are specific to the type of business and the business’s goals for expansion. Some of them are also directed toward specific demographic groups. This is certainly not a comprehensive list of government funding opportunities for small businesses, but it will provide an overview of the type of funding that might be available.

Small Business Administration Programs

The U.S. Small Business Administration (SBA) is a go-to resource for many small business owners. The SBA offers several different ways to get funding, though most are loans rather than grants.

Small Business Innovation Research (SBIR)

This is a competitive program that gives small businesses grant funding to participate in federal research projects with commercial potential. If your business deals with research and innovation, this could be a good way to expand that function. To qualify, businesses need to be based in the U.S., for profit, run by a U.S. citizen or permanent resident, and have fewer than 500 employees.

Small Business Technology Transfer (STTR)

STTR is similar to SBIR, with the major difference being that businesses participating in STTR will need to partner with a nonprofit research organization. This can be a college or university, private research nonprofit, or a federally funded research center. The program’s goal is to strengthen the connection between basic scientific research and businesses that can take advantage of research products’ innovations.

State Trade Expansion Program (STEP)

If you want to expand your business by exporting your product, STEP can help provide access to foreign markets. Businesses can also receive support for developing international marketing campaigns and access to foreign trade shows. This is a federal program that uses state agencies to distribute funding, so you’ll work with the Economic Development Partnership of North Carolina to apply for STEP.

Small Business Investment Company (SBIC) Funding

SBICs are private investors licensed by the SBA. The SBA matches the private investment 2:1, and this money can be given as a loan, equity in the company or a combination of the two. SBIC funding can range from $250,000 to $10 million. To qualify, businesses need to be U.S.-based, meet the SBA’s size standards to qualify as a small business, and be part of certain approved industries.

SBA-Backed Loans

SBA-guaranteed loans usually come with lower interest rates and lower down payments than private business loans. They can range from $500 to $5.5 million depending on the size, nature and needs of your business.

Department of Commerce Programs

The federal Department of Commerce is another good source for business funding. These grants tend to be more specific, so you’ll want to be sure you qualify before applying.

Minority Business Development Agency (MBDA)

The Minority Business Development Agency offers specific grants and loans for minority-owned businesses. These will vary, so you’ll need to watch the agency’s website for opportunities that apply to you and your business. This is another federal program that operates through state agencies, so you’ll want to get in touch with the North Carolina MBDA Business Center.

Economic Development Administration (EDA)

This agency provides competitive grants to either specific demographic groups, regions of the country, or industries. These will vary based on the needs the agency sees throughout the year. Recent examples include indigenous communities and travel and tourism businesses. Businesses can apply for these grants through grants.gov.

U.S. Department of Agriculture Programs

The USDA offers several funding programs both for businesses directly involved in agriculture and those operating in rural areas.

Farmers Market Promotion Program (FMPP)

Farmers Market Promotion Program grants support farmers’ markets and similar arrangements that support direct producer to consumer sales, with the additional goal of improving consumer access to locally farmed products. Agricultural businesses, as well as related trade groups and nonprofits, can apply for these grants.

Rural Innovation Stronger Economy (RISE)

The RISE program is designed to create high-paying jobs and promote business growth in low-income rural areas. While for-profit businesses are not eligible to apply for these grants, they do support building and growing businesses in rural areas.

North Carolina State Programs

In addition to federal programs, North Carolina offers funding opportunities for small businesses as well, mostly run through the state Commerce Department. These include cash grants and tax exemptions that can improve your cash flow.

A factor you’ll see mentioned in many North Carolina state programs is the County Distress Rankings system. This system sorts the state’s counties into three tiers based on their economic well-being, with Tier 1 being the best off and Tier 3 being the most economically strained. This calculation is based on the counties’ average unemployment rate, median household income, property taxes and population growth. Businesses will receive the most credit for investing in Tier 3 counties.

Job Development Investment Grant (JDIG)

The JDIG program provides cash grants to companies that invest and create jobs in North Carolina. The grants are awarded based on the number of jobs created, the wage those jobs pay, the county’s economic tier and the industry the business is in. They are paid annually for up to 12 years.

One North Carolina Fund (OneNC)

This is another cash grant program that is designed to allow the governor, through the North Carolina Department of Commerce, to support job creation quickly. To calculate grant amounts, the department considers the number of jobs a business creates, the location, the economic impact, the overall importance to the state and the level of investment in the state.

Business Tax Exemptions

North Carolina offers a few different ways for businesses to reduce their tax burdens. For example, manufacturing machinery and raw materials are exempt from sales tax. There are several other goods and services that are exempt from state sales and use taxes, detailed here.

Start Your Business Off Right With Our Business Startup Team

Applying for government grants can be complicated, but many agencies offer online resources like webinars and application guides to make it easier. Federal grants are usually processed through grants.gov.

Starting a business, applying for grants, and serving clients all at the same time can be a daunting task. Make sure you’re building your business the right way with the business law team at Wilson Ratledge by your side. Call us today at 919-787-7711 or fill out our online form to schedule a consultation!

Your organization could resort to downsizing for many reasons, including cost-cutting, restructuring, mergers, and other factors. When you consider laying off employees, you must examine the risks of violating various state and federal laws. Furthermore, in the event of a layoff, several common law claims may be strengthened, and a mass layoff may expose you to multiple claims from several employees in a class-action lawsuit.

Successfully executing a layoff is one of the most challenging problems your company may face. However, a considerable body of best practices has been developed to aid management in carrying out the downsizing in a planned, legally compliant, and humane approach.

Legal Implications of Layoffs

An organization’s choice to downsize may violate several federal and state laws. Almost half of the states have their own notice laws. Some even go so far as to demand that corporations pay a modest severance package or continue to provide health insurance to employees for a limited time following the layoff. 

North Carolina, however, does not fit into either of these categories. Because North Carolina lacks its own layoff or plant closure statute, workers are solely covered by the Federal WARN Act.

Worker Adjustment and Retraining Notification Act (WARN)

The purpose of this statute (and its state law equivalents) is to reduce the harm caused by layoffs to workers and communities. WARN requires you to offer at least 60 days’ notice of a downsizing to the affected employees.

A “mass layoff” happens when at least 500 full-time workers lose their jobs within 30 days, or when at least 33% of workers at a single site of employment are laid off in 30 days, unless the percentage amounts to fewer than 50 people. A site of employment is a physical area where you run your business operations and could include a building, an industrial complex, or a campus. Physically separate worksites that are utilized for the same function, are in reasonable proximity, and share the same personnel and equipment may also be considered a single employment site.

The Federal WARN act is limited to larger firms. A large business has:

• At least 100 full-time workers (those who work at least 20 hours a week and have been on the job for at least six of the previous 12 months prior to the notice) or,
• 100 employees who work a cumulative of 4,000 hours or more each week.

Determining whether WARN applies to a given layoff can be challenging. It is advisable to seek legal advice in all instances, even in what may seem to be the most straightforward cases.

Notice Required by WARN

Employees who will lose their jobs during downsizing are entitled to 60 days’ notice. Individual notice is not available to unionized workers. Instead, the employer must inform its union representatives, who in turn notify the impacted employees.

The notice must include specific details regarding the impending layoffs, including whether they will be temporary or permanent or whether the employee will be given bumping benefits. It should also state when the layoffs are slated to begin and when the employee will receive a termination letter.

In some cases, you are not required to give any notice at all or can give less than 60 days’ notice.

No Notice Required

An employer is not legally compelled to give early notice of a mass layoff in some instances. They include:

1. Temporary Projects: No notice is necessary if an employer releases personnel employed solely for a temporary project that has been completed or shuts down a facility that was only meant to be open for a limited time. This exception is only applicable if the employees were aware of the temporary situation during hiring.
2. Strikes and lockouts: WARN does not apply if a closure or downsizing results from a workers’ strike or an employee lockout.

Shorter Notice Allowed

In select circumstances, you may offer less than 60 days’ notice. You must clearly explain in a written notice why you were unable to provide the mandated 60 days’ notice.

1. Unforeseeable business conditions. A shorter notice period is permitted if the grounds for the downsizing or layoff were not reasonably foreseeable at the time, the employer should have given 60 days’ notice.
2. Natural calamities. If a natural disaster causes a layoff, you may give less than 60 days’ notice.
3. Faltering Enterprise: If your company is facing financial difficulties, it may give a shorter notice. You must, however, demonstrate that your business was actively seeking business or funding that would have enabled it to defer or avert the downsizing and that it reasonably believed that giving a 60-day notice would have gotten in the way of obtaining the necessary money or business. However, this provision is only applicable for plant closures, not mass layoffs.

What Happens With A WARN Violation?

An employer who breaches WARN may be held liable for all wages and benefits lost due to the violation, up to the full 60 days mandated by WARN. Any salaries or severance fees paid voluntarily by the employer are deducted from the sum. You may also be required to pay the legal fees and court costs of affected employees who win their lawsuits. 

Additionally, you may have to pay $500.00 in civil penalties for every day you fail to notify local authorities. However, if you deliver back pay to every affected worker within three weeks of parting, you can avoid the $500.00 civil penalty.

Because WARN stipulates that an employer’s maximum liability is limited to 60 days, providing your employees with full benefits eliminates any potential liability. However, no provision in WARN allows for payment in lieu of notice, and the laws do not recognize the concept.

Our North Carolina Business Attorneys Can Help

As seen from the above discussion, federal WARN and its state equivalents can be highly complex and technical legislation that should be considered whenever your business is having to downsize. 

If your company is considering layoffs or downsizing, the Wilson Ratledge North Carolina business attorneys can help you ensure compliance with all applicable state and federal labor regulations. Call them today at 919-787-7711 or fill out the form online to schedule a consultation!