How to Form a Corporation in Delaware

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The Corporation is a business structure that provides personal liability protection by separating the owner’s personal assets from the assets of the business. Thus, a corporation is liable for the actions and finances of the business, while the owners (known as shareholders) are not.

Corporation Pros

  • Corporations provide liability protection for the shareholders
  • A corporation can raise non-debt financing by selling shares of the business
  • Taxation may be lower than a sole proprietorship or partnership

Corporation Cons

  • Corporations are more complex and expensive to set up than sole proprietorships, partnerships, and Limited Liability Companies (LLC)
  • At a minimum, corporations are required to hold an annual board of directors meeting, shareholders meeting, take minutes at the meetings, issue shares, etc., to maintain the entity’s liability protection.

 Related: Guide to starting a business in Delaware

Generally, Corporations are chosen over a Limited Liability Company when a significant amount of funding is being raised from investors.  However, due to the cost and complexity of the Corporation, most small businesses are better off forming an LLC.

Related: How to form an LLC in Delaware

The following steps are to create a domestic Corporation, which is the most common type for businesses. The other types of Corporations in Delaware include a foreign Corporation (an out-of-state Corporation wanting approval to physically operate in the state), a professional Corporation (designated for Corporations offering professional services), or a non-profit Corporation.

Steps to Forming a Corporation in Delaware

Step 1: Choose a Name

The first step in forming a Corporation in Delaware is selecting a name.

The name of the Corporation has to be different from other entity names in the state of Delaware.  Check Available Corporation names in Delaware.

The name of the Corporation must include one of the following designators at the end of the business name:

  • Association
  • Company
  • Corporation
  • Foundation
  • Syndicate
  • Society
  • Union
  • Limited
  • Institute
  • Incorporated
  • Fund
  • Club
  • Or an abbreviation of one of those words

A comma may be used after the business name and before the designator. For example, “Common Grounds Coffee Inc.” and “Common Grounds Coffee, Inc.” are both acceptable.

If there is a name you want but are not ready to register the Corporation, you can file the Application for Reservation of a Corporation with the Delaware Secretary of State. The name reservation will hold a name for up to 120 days at the cost of $75.

Before selecting a name, you may also want to see if the domain name is also available.

While a Corporation has to select a unique name that another Delaware Corporation isn’t using, that doesn’t guarantee the name isn’t being used by someone else. So before registering a Corporation name, be sure to do a trademark search to verify it is available for you to use.

Step 2: Choose a Registered Agent

To have a Corporation in Delaware, a Delaware Registered Agent must be identified to act as a central point of contact to receive legal documents, tax notices, summons, subpoenas, etc., on behalf of the Corporation.  This can either be a resident of Delaware or a commercial registered agent service.

You can act as your own registered agent in Delaware, and you are not required to pay for a registered agent. The requirements to be a Registered Agent are generally available during normal business hours and have a physical street address in the state.  A PO Box is not allowed.

Any individual meeting the requirements can be the agent; however, the agent’s name and address will become public record, and with that comes a loss of privacy. This is more important for some entrepreneurs, especially when doing business from home or are still employed.  Hiring a company like Northwest Registered Agent to be the Registered Agent will help protect their privacy.

Related: Do I Need a Registered Agent in Delaware?

Step 3: File the Delaware Certificate of Incorporation

Next, you can start filing the Certificate of Incorporation with the Delaware Department of State. The Certificate of Incorporation can only be filed online on the Delaware Division of Corporations website.

The information requested includes:

  • The name of the Corporation, which must contain the word “Association,” “Company,” “Corporation,” “Club,” “Foundation,” “Fund,” Incorporated,” “Institute,” “Society,” “Union,” “Syndicate,” “Limited,” or an abbreviation of these words.
  • Registered Agent’s name and physical address (PO Boxes are not allowed)
  • The purpose of why the Corporation is being organized. In most cases, a Corporation will use the general business purpose statement, “The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.”
  • Information regarding the shares of the Corporation.   This section includes the number of shares authorized and the par value of those shares.
  • Name, address, and signature of the incorporator.   This can be one of the owners of the Corporation or someone helping with the formation of the entity.

You don’t have to form your Corporation by yourself or pay an attorney!

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Step 4: Create Corporate Bylaws

Bylaws are basically the overall guiding principles and procedures of the operations of the business. The bylaws include the name of the officers of the corporation, responsibilities of the board members, terms of office, procedures for removing or adding a new director or shareholder, policies for authorizing new shares, when shareholder and director meetings will be held, and more.

While bylaws are required in Delaware, more importantly, they serve as a critical document to reduce owner and shareholder disputes.  An attorney can help draft bylaws, or you can use a template to generate your own with LawDepot or RocketLawyer.

 

Step 5: Hold the Initial Board of Directors Meeting

During the first board meeting, the board of directors at a minimum will elect the officers of the corporation (the President, Vice President, Treasurer, and Secretary), review and approve corporate bylaws, choose a bank, issue shares of stock, and decide whether the Corporation will be taxed as a C corporation or S corporation.

It’s critical to remember that taking meeting minutes at all meetings is necessary to protect the shareholders from lawsuits and court actions. The minutes provide a record of all decisions and actions taken during the meeting. Minutes aren’t filed with the state, however, they need to be stored with other Corporate documents.

Step 6: Issue Shares of Stock

In exchange for money or services, the Corporation can exchange shares of stock. The number of shares of stock issued cannot be more than the number of authorized shares listed in the Certificate of Incorporation.

If you are using an attorney to create the bylaws, they can also create the shares of stock.  Alternatively, a Corporate Kit can be purchased from Amazon, which has a corporate records book, blank stock certificates, initial meeting minutes template, corporate seal, and more.

Step 7: Obtain an EIN

The EIN or Employer Identification Number (also called a Federal Employer Identification Number, FEIN, or Tax ID Number) is a unique 9-digit tax identification number assigned to a business by the Internal Revenue Service (IRS). Similar to a social security number for an individual, the EIN identifies the Corporation for tax purposes. The EIN will be needed to hire employees, open a bank account, register for business licenses and permits, file tax returns, and more.

There is no cost for the EIN when registering through the IRS. The number is available immediately when applying through the IRS website; however, you can also register by phone, fax, or mailing IRS Form SS-4.

Related: How to Apply for an EIN

Step 8: Elect the Corporation’s Form of Federal Income Taxation

By default, a new corporation will be taxed by the Internal Revenue Service (IRS) like a C-Corporation.  C-Corporations pay corporate taxes on their profits, and the owners pay personal income taxes on their dividends.

A Corporation can elect to be taxed as an S-Corporation. S-Corporations are taxed as “pass-through entities,” which means the Corporation itself does not file corporate taxes. Instead, the profits (or losses) “pass through” to the shareholders, who then report this income on their individual taxes.

For most small businesses, the S-Corporation tax election is the most beneficial because it eliminates the double taxation of the C-Corporation. This tax election can be changed, however, it is highly recommended to talk with an accountant before making this decision.

Step 9: Open a Bank Account

Opening a bank account for your Corporation is important for liability protection as the bank account separates the business’s funds from the member’s personal funds.
Several documents will be needed to open a business bank account, such as:

  • banking resolution is a document that authorizes the members to open a business bank account on behalf of the LLC.
  • Copies of the original Certificate of Incorporation showing the creation of the Corporation in addition to the bylaws.
  • Driver’s licenses of the members.
  • Depending on the age of the Corporation, a Delaware Certificate of Good Standing may be needed to prove the business entity is active and in good standing with the state.

Related: How to Open a Business Bank Account 

Step 10: Apply for Business Licenses and Permits

Depending on what your business does and where it is located, various business licenses and permits will likely be needed before starting your business. Some common registrations include:

  • Business License – Every business operating in the state will need to obtain a state of Delaware business license from the Delaware Division of Revenue.  The business license combines licensing from the Division of Revenue, the Division of Unemployment Insurance, and the Office of Workers Compensation. Also, several cities require businesses to obtain licensing before they can start.
  • Professional License – Certain professions such as barbers, salons, accountants, and others must be licensed with the state.

Related: What Business Licenses are Needed in Delaware?

Step 11: File Annual Reports

Corporations are required to submit an annual report and pay the franchise tax by March 1st each year.

The annual report filing fee for a Delaware corporation is $50, and the minimum franchise tax is $175 with a maximum tax of $200,000.

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