What state gives the best asset protection?
The unique asset protection benefit offered by LLCs (and limited partnerships) formed in strong states is the charging order. When someone goes to court and wins a judgment against you, they naturally want to collect. A judgement creditor can reach the shares of a corporation (with one exception we will discuss later.) Shares can give the judgment creditor voting control – and the power to sell assets. However, in an LLC formed in strong state (such as Wyoming or Nevada) all the creditor gets is a charging order, which is a lien on distributions. They can’t force a sale of the assets of the LLC (as they can in California, New York, Utah and other weak states). Instead, the judgement creditor only receives what is distributed from the LLC, which might be nothing.
Due to the benefit of charging order protection, many clients will select an LLC over a corporation. Know that the beneficial treatment of S corporation taxation, which allows for the minimization of payroll taxes, can be selected for LLCs. So for business operations, where salaries are paid, an LLC taxed as an S corporation is frequently used. For investment activities where no salaries are paid, an LLC taxed as a partnership works well. If formed in strong states, both feature charging order protection.
But what if you can’t use an LLC? For example, in California a real estate broker or agent cannot use an LLC for their brokerage activities. Only a corporation is allowed. This means you don’t have the benefit of charging order protection.
But remember, we said there was one exception. Nevada is the only state in the union that extends charging order protection to corporate shares. This makes Nevada the best state to incorporate a corporation in.
Which States Have the Best Tax Rates?
We don’t want to set up in a good state if we are going to have to pay any extra state taxes. Both Nevada and Wyoming do not have any personal income taxes. Wyoming doesn’t have a corporation tax either. Nevada changed their law last year. The state now has a gross receipts tax, which is an assessment not on profits, but money coming into the business. The tax applies to gross receipts of $4 million or more generated in Nevada. So, if you are operating outside of Nevada, this tax will not affect you.
Delaware is another low tax option. They tax entities doing business inside their state. But by setting up in Delaware, you would have the benefit of favorable corporate laws but be paying lower taxes compared to many other states.
Conversely, suppose you set up a California corporation to do business in Oregon. Not only would you have to pay Oregon taxes (because you are doing business there), but you would also have to pay California’s notorious $800 per year franchise fee because you incorporated there.
Which States Are the Best at Protecting My Personal Assets and at What Cost?
When considering the best state to incorporated in we have to factor in the extra fees. If your Wyoming LLC is going to hold real estate in another state, you have to qualify to do business in that second state. It is not hard to do. You simply get permission for the Wyoming LLC to conduct business in the second state. But now you have to pay the annual fees in two states, in Wyoming, and the second state. So we don’t want Wyoming’s fees to be high. (We are going to have to pay the second state’s fees anyway because that is where the real estate is located.)
Wyoming’s annual fee is only $50 a year. You are required to have a registered agent in Wyoming to accept services of process (lawsuits), and we charge $125 a year for that service. So for $175 a year you are in a much stronger protection than if your LLC was formed in a weak state.
Nevada’s annual fees are $350 per year. With another $125 per year resident agent fee, the total is $475, or $300 more than Wyoming. For this reason, along with the fact that Nevada lists your name as an LLC member or manager on its website while Wyoming maintains your privacy, there is a clear winner.
Wyoming and Nevada both offer strong charging order protections. But with Wyoming offering greater privacy at lower cost, Wyoming is the best state for LLCs.
The best state to incorporate a corporation, conversely, is Nevada. While the annual fee is $650 a year, by being the only state to extend charging order protection to corporate shares, Nevada is the best state for corporations.