We assist farmers, ranchers and dairies with a broad range of matters involving crop-growing and livestock-raising, including farmland use, tax law, estate planning law, farming operations, employment, farming rights, water law, land use, pest control, pesticides, environmental issues, agricultural labor, marketing, land use, pesticide use, and other matters.
Agriculture is one of the most regulated industries in our society today.
The legal services we provide are the following:
- Assist farmers in succession planning in order to help preserve farms for future generations
- Assist in zoning, land use cases and eminent domain issues
- Negotiate with land developers
- Obtain licenses and permits that agricultural entities may need in order to operate, such as setting up corporations, proprietorships, and partnerships
- Be a source of information to those in the agricultural industry on labor and employment laws
- Provide guidance in regulatory compliance
- Advise and consult upon environmental legislation vs. landowner rights
- Assist in the implementation of federal farm policies as they apply within the state
- Provide assistance in preventing fraud and deception in packaging and labeling of products
- Give general legal counsel to individuals, companies or organizations
- Identify and carry out opportunities to help protect farms from urban sprawl and activists
- Develop a detailed knowledge of issues affecting agricultureThe areas of law that come into play when we provide advice to our agricultural clients are the following:
- Energy Law
- Environmental Law
- Estate and Gift Tax Law
- Income tax law
- Water Law
- Land Use Law
- Natural Resources Law and Policy
- Business Associations
- Trusts, Wills and Estates
- Contract Drafting
- Intellectual Property
- Oil and Gas
- Secured Transactions
- Real Estate and Property Law
- Administrative Law
- ADR: Negotiation, Mediation & Arbitration
At times, we have been retained to analyze whether a particular transaction violates anti trust laws.
The antitrust laws proscribe unlawful mergers and business practices in general terms, leaving courts to decide which ones are illegal based on the facts of each case. Courts have applied the antitrust laws to changing markets, from a time of horse and buggies to the present digital age. Yet for over 100 years, the antitrust laws have had the same basic objective: to protect the process of competition for the benefit of consumers, making sure there are strong incentives for businesses to operate efficiently, keep prices down, and keep quality up.
Among the legal services we provide to our clients seeking business financing include, but are not limited to, the following:
- Seeking Capital: Sources and Strategy
- Business Plans
- Founder Agreements
- Structuring a Financing Transaction
- Forms of Securities
- Issuing Common Shares
- Issuing preferred shares
- Private Placements
- Drafting a Private Placement Memorandum Under Regulation D
- Investor Agreements
- Loan Financing
- Letters of Credit
We provide business insurance legal aspects counseling for the following:
- Interpretation of Insurance Policies
- Commercial Property Coverage
- Commercial General Liability Policies
- Commercial Automobile Policies
- Personal Automobile Policies
- Homeowners Policies
- Directors and Officers Liability Policies
- Employment Practices Liability Policies
- Excess Insurance
- Intellectual Property liability policies
- Workman’s compensation policies
We prepare Business Plans. In addition, we provide Business Planning.
The two are not the same thing.
A business plan is a comprehensive written overview of the business idea. It outlines what the business will do and how it will be launched, covering everything from sources of funding to potential competitors. Business plans are especially useful for startup companies looking to attract and convince prospective investors.
Business Planning combines all of the various areas of business law, real property law, tax law and estate law, tying them together to derive a plan for the legal and succession issues facing every business.
Business Planning combines and addresses the issues and concepts of all of the following:
- Business Organizations
- Estate Planning
- Accounting Principles
- Tax analysis and planning in the organization and operation of a business.
- Range of statutory and regulatory issues, such as the federal securities concerns in raising capital, as well as important judicially developed doctrines with which a practitioner must be familiar in order to advise a business with respect to issues related to the structure, governance, and operation of the business.
Steve Yahnian is an Attorney/CPA/CFP® with a Masters in Taxation from NYU, and a Tax Certificate (With Distinction) from UCLA. He is also a California State Bar Board of Legal Specialization Specialist in Taxation. He also has a separate accounting practice called DSA ACCOUNTING.
As tax specialists, we both analyze tax law and render tax opinions. We also provide tax planning.
Our Business Tax & Tax Planning services include the following areas of taxation:
Tax Strategies for Business Owners
Routinely and on nearly a daily basis, we perform tax analysis and planning for our clients.
Tax planning is the process of looking at various tax options in order to determine when, whether, and how to conduct business and personal transactions to reduce or eliminate tax liability.
Many small business owners ignore tax planning. They don’t even think about their taxes until it’s time to meet with their accountants, but tax planning is an ongoing process and good tax advice is a valuable commodity. It is to your benefit to review your income and expenses monthly and meet with us quarterly to analyze how you can take full advantage of the provisions, credits, and deductions that are legally available to you.
Although tax avoidance planning is legal, tax evasion – the reduction of tax through deceit, subterfuge, or concealment – is not. Frequently what sets tax evasion apart from tax avoidance is the IRS’s finding that there was fraudulent intent on the part of the business owner. The following are four of the areas the IRS examiners commonly focus on as pointing to possible fraud:
- Failure to report substantial amounts of income such as a shareholder’s failure to report dividends or a store owner’s failure to report a portion of the daily business receipts.
- Claims for fictitious or improper deductions on a return such as a sales representative’s substantial overstatement of travel expenses or a taxpayer’s claim of a large deduction for charitable contributions when no verification exists.
- Accounting irregularities such as a business’s failure to keep adequate records or a discrepancy between amounts reported on a corporation’s return and amounts reported on its financial statements.
- Improper allocation of income to a related taxpayer who is in a lower tax bracket such as where a corporation makes distributions to the controlling shareholder’s children.
Tax Planning Strategies
Countless tax planning strategies are available to small business owners. Some are aimed at the owner’s individual tax situation and some at the business itself, but regardless of how simple or how complex a tax strategy is, it will be based on structuring the strategy to accomplish one or more of these often-overlapping goals:
- Reducing the amount of taxable income
- Lowering your tax rate
- Controlling the time when the tax must be paid
- Claiming any available tax credits and deductions
- Controlling the effects of the Alternative Minimum Tax
- Avoiding the most common tax planning mistakes
- Accelerating deductions
- Deferring Income
- Dividing up income between or among multiple entities
- Dividing income into multiple years to take advantage of lower tax brackets
- Structuring transactions to meet capital asset criteria
- Structuring expenses to meet business expense criteria
In order to plan effectively, you’ll need to estimate your personal and business income for the next few years. This is necessary because many tax planning strategies will save tax dollars at one income level, but will create a larger tax bill at other income levels. You will want to avoid having the “right” tax plan made “wrong” by erroneous income projections. Once you know what your approximate income will be, you can take the next step: estimating your tax bracket.
The effort to come up with precise estimates may be difficult. By its very nature estimating will be inexact. On the other hand, you should already be projecting your sales revenues, income, and cash flow for general business planning purposes. The better your estimates are, the better the odds that our tax planning efforts for you will succeed.
For more information, visit our affiliated website YAHNIAN TAX
We counsel upon, design, prepare and assist our business clients in formulating and implementing agreements among the owners to keep the business in the hands of that ownership group. We do this in order for them to maintain ownership in a closely held manner, including keeping creditors and other third parties from obtaining an interest in the business. These Agreements are usually called business buy-sell agreements.
What is a buy-sell agreement?
A buy-sell agreement, also known as a buy-and-sell agreement, is a contract that determines how a shareholder’s or partner’s shares in your company are reassigned if the shareholder/partner departs, dies or otherwise ceases their ownership in multiple party owned company. Usually, your buy-sell agreement will state that the shareholder’s/partner’s shares should be sold to your company’s other owners. Additionally, buy-sell agreements often lay out a valuation process for your business.
Purpose of Buy-Sell Agreement
The purpose of a buy-sell agreement is to provide for an orderly transition of ownership interests on the occurrence of specified events. A carefully drafted agreement will anticipate potential issues that may upset the functioning of a small, closely held entity when an owner desires or is forced to sell his or her interest in the entity. Typically, a buy-sell agreement controls the circumstances under which an owner may sell his or her interest, who is a permitted buyer, and how the price will be both determined and paid.
A buy-sell agreement benefits the entity and its owners by
- Allowing the remaining owners to determine with whom they will work and share control of the entity;
- Preventing outsiders or heirs, whose interests may conflict with those of the entity or the remaining owners, from obtaining an ownership interest (see Tu Vu Drive-In Corp. v Ashkins (1964) 61 C2d 283);
- Ensuring continuity of management and control by the remaining owners;
- Increasing job stability for minority owners and key nonowner employees;
- Providing for the orderly liquidation of the owners’ interests in the event of death, disability, retirement, or other forced or voluntary withdrawal;
- Preventing the continued involvement in the business of retired or inactive owners;
- Providing capital gains treatment for retiring or disabled owners
- Creating a market for the shares of deceased, retiring, or withdrawing owners;
- Generating cash to pay death taxes and estate settlement costs;
- Fixing the value of the interest for estate and gift tax purposes;
- Preserving the legal status of the business, such as professional corporation, limited liability partnership, or limited liability company; and
- Preventing the loss of S corporation status by preventing the transfer of an interest to an ineligible shareholder (e.g., a corporation).
Many investors insist on a buy-sell agreement with the management of companies they fund. These agreements provide the investors with an exit strategy from a company that does not perform to their expectations. An investor typically can either retrieve its investment in an under-performing company or obtain enough additional shares to oust management or sell control of the company to others.
The buy-sell agreement can be drafted as a stand-alone agreement or incorporated in the entity’s operating agreement (e.g., as covenants within a shareholder agreement, limited liability company operating agreement, or partnership agreement). Obviously, great care must be taken to ensure that the entity’s operating agreement and the terms of the buy-sell agreement are consistent.
Basic contract law and drafting principles apply to buy-sell agreements. A buy-sell agreement that fails to reflect adequately or accurately a transaction or to describe and protect the client’s rights fails in one of its essential purposes. An imprecise or badly drafted buy-sell agreement may result in either a dispute regarding an ambiguous or incomplete contractual provision.
We plan, design, advise upon, prepare and implement business agreements of every kind for our clients.
Purposes of Written Agreement
Written (as distinct from oral) agreements are generally advisable and may be necessary to accomplish one or more of the following purposes:
- Serve as a symbolic step, indicating that the parties have made a deal.
- Serve as a source of information.
- Organize a complex transaction.
- Identify prospective obligations.
- Memorialize an agreement for later reference, by providing either a general or specific guide to conduct.
- Deter undesirable acts, even if the document is unenforceable.
- Longer Statute of Limitations for suing for breach of contract (usually 4 years as opposed to 2 year statute for oral contract breaches)
- Maintain the interest and participation of parties (e.g., a guaranty may keep an essential individual involved in a company’s operations).
- Allocate risk.
- Satisfy the statute of frauds or other statutes or case law that may require an agreement be written to be enforceable.). For example, the following types of transactions may require a signed writing on an authenticated record:Transfers or leases of real estate (CCP §1971; CC §1624(a)(3)–(4), (6));
Promises that by their terms will not be performed within a year after the date they are made or within the lifetime of the promisor (CC §1624(a)(1), (5));
Extension of credit of more than $100,000 (CC §1624(a)(7));
Contract modifications that are required to be written (CC §1698; Com C §2209);
Certain agreements for the sale of goods in excess of $500 (Com C §2201(1)), and certain agreements for the sale of other personal property in excess of $5000 (Com C §1206(1));
Creation of a security interest in personal property (Com C §9203); and
Interest provisions in lending documents (Truth in Lending Act (15 USC §§1601–1693r)).
NOTE: Enforceable written agreements may be in electronic form, including e-mail and click-wrap agreements executed over the Internet. The Electronic Signatures in Global and National Commerce Act (E-Sign) (15 USC §§7001–7031) confirms the ability of parties to contract electronically. See also California’s Uniform Electronic Transactions Act (CC §§1633.1–1633.17). Text messages, instant messages, and similar ephemeral electronic communications are not sufficient to form a contract to convey real property in the absence of a written confirmation meeting the requirements of the statute of frauds. CC §1624(b)(1), (d)
We negotiate and review or prepare distributorship documents for our clients.
A distributor is a sales representative that purchases products from the manufacturer or supplier for resale. Thus, title to the goods passes to the distributor at the time of delivery of the products to the distributor from the manufacturer or supplier. Distributors generally operate at the wholesale level, selling only to retail outlets, but some distributors sell partially or entirely to retail customers.
A distributor differs from a manufacturer’s or supplier’s agent, and from a consignee, in that the distributor has both possession of and title to the goods that the distributor sells, while a consignee has only possession and not title, and a manufacturer’s or supplier’s agent has neither possession nor title .
Nonmutual profit is inherent in the contractual relationship between a distributor and a manufacturer. The manufacturer is free to make pricing and distribution decisions for the purpose of increasing profits at the expense of distributors. Although, such decisions usually are made to increase the manufacturer’s overall sales and have the effect of benefiting both the manufacturer and the distributors. However, since nonmutual profit is inherent in the relationship, it is not a fiduciary relationship [Rickel v. Schwinn Bicycle Co. (1983) 144 Cal. App. 3d 648, 654-655, 192 Cal. Rptr. 732 (manufacturer had no fiduciary duty to exercise good faith in deciding whether to approve proposed buyer of distributor’s business)].
Distributors are commonly used by manufacturers or suppliers for the marketing of automobiles and automotive parts, electronic equipment and supplies, machine tools and related equipment, plumbing fixtures and supplies, hospital equipment and supplies, furniture, drugs, and toiletries, jewelry, and paper supplies. A distributor may handle the products of only one manufacturer or supplier, or those of several noncompeting manufacturers or suppliers.
A distributor that handles the products of only one manufacturer or supplier may operate as a franchise.
We plan, design and prepare Employee Handbooks for our business clients.
As a business employs more people, employment issues arise and compound themselves.
More employees means more challenges. These include challenges in communicating with employees. A well-written employee handbook can help with this communication by ensuring that necessary comprehensive information is given to all employees in a consistent manner.
An employee handbook can outline employee benefits, let workers know what is expected of them, and facilitate better communication with managers. It also demonstrates the company’s desire for good relations with its employees and provides a source for employees to quickly get answers if questions arise.
The publication of written policies makes decisions based on those policies more credible. In addition, a well-drafted handbook reserves for the employer the right to deviate from the stated policy in appropriate situations.
Employee handbooks often aid new employees in understanding the company’s policies, procedures, and benefits. They also serve to educate supervisors and managers and are a ready resource to use in resolving employee complaints about policies and conflicts over procedures. Thus, employers usually find that the advantages of publishing an employee handbook outweigh the disadvantages.
Every business has its own particular culture, values, and personnel practices, so no single set of inclusions will suffice for all company handbooks. That is why you should engage us to plan, design and prepare your Employee Handbook, rather than adopt a cookie cutter approach.
A written employment contract is a document that you and your employee sign setting forth the terms of your relationship. In most California it makes good sense to ask an employee to sign a contract.
A California employment contract agreement is a written agreement that has been agreed upon by an employer and their employee which outlines the terms and conditions of employment. An employment agreement typically includes clauses such as income, benefits, sick days, vacation, duties, employment period, and things of that nature. Employees who are given more responsibility and have greater access to information relating to the employer and the business’s confidential information will most likely have to sign contract agreements containing non-disclosure and non-compete clauses included therein.
We provide advice and counsel concerning employment law matters.
Employment law is the section of United States laws that determines how an employee and employer can work together. It regulates the relationship between workers, managers, and owners. It includes how and when an employee can work, what they should be paid, and the minimum conditions that are safe and appropriate to work in. It also determines when someone can be hired or fired and outlines the rights of employees and employers.
Both federal and state governments have enacted a wide range of employment laws concerning employees from treatment, labor practices, work conditions, and more.
We provide in-depth legal services on all phases of the employment process — from the interview and hiring stage to promotion and termination. In addition, we provide advice and planning about privacy in the workplace, wage and hour laws, workplace safety, family leave policies, and detailed advice on hiring and terminating employees.
As requested to do so, we review, negotiate and prepare Equipment Leases.
Equipment leasing (and lease financing) is a huge industry. According to statistics, equipment leasing is the second most used means of financing business equipment in the United States. In many ways and for many reasons, equipment leases and other arrangements offered to equipment users is good business sense. It is also practical sense. The typical users of equipment lease legal services are banks, financial institutions and other lessors and lenders.
There are significant issues to any equipment financing that are unfamiliar to most persons, and many lawyers, for that matter. Attempting to negotiate an equipment lease or lending arrangement can be difficult and unproductive unless experienced counsel is involved. Inexperienced legal Counsel is also at a distinct disadvantage in resolving disputes regarding the terms of financings, including renewal, purchase and return rights and obligations when the term ends.
These types of contracts are complex and filled with traps for the unwary. Many times, they are also small print, standard, one size fits all form agreements presented by institutional lenders and financing companies to the lessee with little opportunity to negotiate. We can change that result in many cases.
We assist business in franchising their brands. Conversely, we assist those entrepreneurial individuals who are considering buying a franchise. We prepare franchise documents and also review, analyze and provide legal counsel concerning the same.
Franchisors in California planning to sell franchises in the state must fulfill the state’s registration requirements and provide the proper franchise disclosure documents to both the California government and the potential franchisee. To avoid potentially costly mistakes, many franchisors seek assistance from an experienced franchise lawyer to ensure they comply with California franchise law and registration requirements.
The California statutes include a broad definition of a franchise, so sometimes businesses are unaware that they are required to comply with these state laws. California was one of the first states in the country to enact franchise disclosure laws, and regulators are vigilant about protecting prospective franchisees.
As a Business attorney, I also provide legal services concerning governmental contracts. My clients will bring them to me for review.
Government contracts law is comprised of all the statutes, cases, rules, regulations, and procedures with which any company must comply to do business with the government (whether municipal, state, or federal). Both small and large businesses contract with government entities. In any event, businesses contracting with the government face rules and regulations in virtually every aspect of making, performing, and eventually terminating a contract with an agency or department.
Since the set of laws and regulations covering government contracts is immense, complex, and constantly changing, it’s usually in your best interests to contact us early in the process. Many of these rules were put in place to avoid favoritism and to give all bidders fair access to be awarded a contract. Additionally, the competitive bidding process is intended to ensure the lowest price for certain goods.
We provide legal counsel and advice concerning independent contractor status. We also prepare Independent Contractor Agreements.
In recent years, it has become increasingly popular for businesses to use the services of independent contractors for both short- and long-term projects rather than to hire new career employees or maintain former staffing levels. Businesses can retain the services of independent contractors directly, or through a temporary employment agency or leasing service. The use of independent contractors initially appears attractive because the business may enjoy substantially lower personnel costs.. However, if an employer misclassifies a service provider as an independent contractor, and a government agency determines that the service provider is an employee, the employer may be responsible for fines, penalties, and unpaid taxes, and the “responsible person” for the employer may be subject to personal liability and criminal penalties.
Different governmental agencies and jurisdictions apply different tests to determine whether a worker’s relationship to the hiring party is that of an employee or an independent contractor.
In California, a person who performs services for compensation for another (the principal) can be either an employee or an independent contractor. The principal-independent contractor relationship differs in both nature and consequences from an employer-employee relationship. An employer has certain control rights and a multitude of obligations regarding an employee that are not part of a principal-independent contractor relationship. Further, although employees are entitled to a variety of benefits and protections afforded by various laws, such as unemployment benefits, workers’ compensation, and unpaid leave, independent contractors are not entitled to any such benefits based on the performance of services for the principal.
Whether a person is an employee or independent contractor is determined under three primary tests:
- the common law control test ,
- the ABC test , and
- the economic realities test .As a practical matter, however, there is really only a single facts-and-circumstances test, which looks at a variety of evidence to determine the scope of the relationship and the nature of the worker’s services. Except in limited circumstances, such as cases of fraud, principals always bear the burden of proving that the classification of the worker was proper. That is especially where legal counsel becomes the most important.
Engaging a worker as an independent contractor should be viewed as a three-step process:
(1) gathering information about the worker and the scope of the relationship;
(2) applying the tests to the information gathered to determine whether the worker can properly be considered an independent contractor; and
(3) engaging the worker appropriately as an independent contractor.
You may think that a worker’s status as an independent contractor or an employee depends on what your company and the worker decide. As long as both parties agree on the terms of the relationship, that’s all that matters, right?
Wrong. The federal and state governments care a lot about how workers are classified. Not surprisingly, the root of their concern is money. Your company doesn’t have to withhold or pay taxes (including expensive payroll taxes such as Social Security and Medicare) for an independent contractor, and it will have fewer legal obligations to an independent contractor than to an employee. Thus, it’s often in a company’s interest to call a worker an independent contractor.
By contrast, it’s in the government’s interest to label the worker as an employee: The more employees there are in this world, the more money flows straight into government coffers through payroll withholding (and the fewer opportunities workers have to hide or under-report their income).
Unfortunately, there are as many tests to determine whether a worker qualifies as an independent contractor as there are government agencies that deal with workers, from your state unemployment office to the federal Internal Revenue Service. Figuring out how to treat a worker so that agencies classify the worker as an independent contractor can be a complicated undertaking.
Employers who don’t learn the rules before they hire an independent contractor can get hopelessly confused—and get into trouble with one agency or another. To avoid problems such as audits, fines, and taxes, you seek legal counsel an should learn the rules of all of the following agencies before you hire a worker.
In today’s economy, not every person who helps you meet your business needs is necessarily a full-time employee. In fact, independent contractors and freelancers are becoming commonplace for many companies.
Breaking down the pros and cons of utilizing independent contractors can help you decide how best to budget for the needs you have.
Advantages of hiring an independent contractor
There are a number of key reasons companies look to independent contractors more and more, including:
Saving money: Independent contractors often cost more per hour than employees. However, they don’t require employer-paid benefits, office space, education or equipment. On average, independent contractors can save you between 20 and 30 percent of your typical operating costs for a regular employee.
Flexibility: Independent contractors often do not work in your office space and have flexible schedules, and you can use that flexibility based on your business needs. It also frees up the need for training, since many contractors are experts in their field and don’t require much supervision to get started on a project. There’s also no long-term commitment to independent contractors.
Reduce the likelihood of lawsuits: Because your full-time employees are protected under several federal laws and regulations, they can file lawsuits against your business if they feel their employee needs aren’t being met. Independent contractors, however, are not covered under these regulations.
Identifying your business needs and the savings opportunities with independent contractors is a worthwhile discussion among management. It’s possible, too, that hiring an independent contractor could open new doors to other opportunities, or even offering a full-time opportunity to a good candidate in the future.
We receive requests to review Letters of Credit.
What Is a Letter of Credit?
A letter of credit, or “credit letter” is a letter from a bank guaranteeing that a buyer’s payment to a seller will be received on time and for the correct amount. In the event that the buyer is unable to make a payment on the purchase, the bank will be required to cover the full or remaining amount of the purchase. It may be offered as a facility.
Due to the nature of international dealings, including factors such as distance, differing laws in each country, and difficulty in knowing each party personally, the use of letters of credit has become a very important aspect of international trade.
As part of our legal practice, we assist our clients in their obtaining of relevant licenses, permits and registrations with various governmental agencies.
These include, but are not limited to, the following:
- Professional Licenses for new entities we form for clients, such as Insurance Agents and Building Contractors
- City Business licenses;
- Fictitious Business Name registration and publication
- DMV registrations to document transfer of assets to an entity or out of one
We have counseled our clients with respect to and formed numerous limited liability companies.
There are a number of important business and strategic reasons to form and use an LLC to conduct a business and/or own assets.
A limited liability company (LLC) is one of the newer forms of business entities available to businesses and individuals. An LLC is the entity favored by many attorneys because it combines the limited liability attribute of a corporation with the favorable taxation treatment and structural flexibility attributes of a partnership. An LLC has the rights, powers, and obligations given by the laws of the state under which it is organized. Since it is a separate entity, it may sue and be sued in its own name. Depending on the desires of its owners, called members, an LLC may be structured to resemble a sole proprietorship, a partnership, a corporation, or an amalgam of the attributes of each.
One advantage of an LLC is the flexibility it offers in terms of management and ownership structure. LLCs also offer the tax flexibility of partnerships called special allocations.
We advise upon, design and prepare documentation for loan transactions.
These normally consist of the following documents:
- Promissory Note
- Security Agreement and UCC-1 (if the loan is secured by personal property)
- Deed of Trust (if the loan is secured by real property)
- Personal Guarantees if the loan is made to an entity such as a Corporation or LLC
We plan, design, form and implement partnerships for our clients in appropriate circumstances.
What is a partnership?
A partnership is an association of two or more persons who carry on as co-owners and share profits. There can be a contribution of money (capital investment in the business project) or services in return for a share of the profits.
What are the different types of partnerships?
There are four types of partnerships —
- General Partnerships,
- Joint Ventures,
- Limited Partnerships and
- Limited Liability Partnerships (LLPs).
In a general partnership, the partners equally divide management responsibilities, as well as profits.
Joint ventures are the same as general partnerships except that the partnership only exists for a specified period of time or for a specific project.
Limited partnerships consist of partners who maintain an active role in the management of the business, and those who just invest money and have a very limited role in management. These limited partners are essentially passive investors whose liability is limited to their initial investment. Limited partnerships have more formal requirements than the other two types of partnerships.
Finally, there are LLPs. For attorneys, accountants, architects, engineers, and land surveyors, the best form of entity may be the LLP. An LLP eliminates the vicarious liability of partners for partnership liabilities and offers the pass-through treatment of income and loss.
We are often asked to assist our clients in making Retirement Plan choices.
Qualified retirement plans are programs established under the Internal Revenue Code by an employer to provide retirement income for employees. The plans receive tax-favored status by complying with the qualification requirements under one of several Internal Revenue Code Sections. If certain requirements (which vary depending on the type of plan) are met, contributions are currently deductible by the employer, while employees are not taxed until funds are distributed to them.Qualified retirement plans appeal to both employers and employees. Many employers will find it necessary to offer this type of benefit in order to remain competitive. The employer may adopt a plan tailored specifically to the business or a plan with standard options that enable the employer to accomplish the company’s goals. Thus, choosing the right plan is important. In an economy in downturn, flexibility in deciding whether to make a contribution on a year-to-year basis may be desirable. The employer should define the company’s goals and examine each type of plan available to choose the one that matches the goals. In doing so, it is important to consider the advantages and disadvantages of each type of plan.
In choosing the right plan, an employer should consider carefully the benefits and costs associated with establishing, maintaining, and terminating a plan. The contribution level and funding obligations, as well as the anticipated life of the plan, are also important factors to identify when selecting which type of plan to establish. There is no “one plan that fits all.” The demographics and motivation of the employees are factors as well in determining which plan will provide the benefits desired at a reasonable cost. For example, a small family business will probably not be a good candidate for a traditional 401(k) plan if the rank-and-file employees choose not to make elective deferrals. However, a SIMPLE IRA or safe harbor 401(k) plan may work well, since they will automatically pass the nondiscrimination tests. The employer should consider the type of group to be covered, and the benefits desired for certain members within the group, such as key employees. All factors should be carefully considered in selecting a particular type of plan as well as the allocation formula and other design features of the plan.
You may visit my DSA Accounting website for more in-depth information:
At times, we are retained to prepare a Private Placement Memorandum for the sale of interests in business entities.
When a client seeks to raise money from private investors, we are tasked with preparing adequate disclosure documents. Preparing a private placement memorandum (PPM) can be a daunting experience for the uninitiated.
Federal and state securities laws are at the heart of PPMs since they are used in conjunction with the sale of securities (stock and debt instruments). As a result, the business lawyer providing investment entities in which strangers are brought together in a single investment, must have a good grasp of federal and California securities law, including any applicable exemptions from registration.
We receive many requests to document secured transactions for our clients.
The term “secured transaction” applies to any transaction (regardless of its form) that creates a security interest in personal property or fixtures by contract [see Com. Code § 9109(a)(1); The security interest is designed to protect the secured party in the event that the debtor fails to pay or perform the underlying obligation. In addition, the term applies to each of the following [see Com. Code § 9109(a)]:
- An agricultural lien [see Com. Code § 9102(a)(5) (definition)].
- A sale of accounts, chattel paper, payment intangibles, or promissory notes [see Com. Code § 9102(a)(2), (11), (61), (65) (definitions)].
- A consignment [see Com. Code § 9102(a)(20) (definition)].
- A security interest arising under Com. Code § 2401 (seller’s reservation of title to goods), Com. Code § 2505 (seller’s shipment of goods under reservation), Com. Code § 2711(3) (buyer’s security interest in rejected goods), or Com. Code § 10508(e) (lessee’s security interest in goods in lessee’s possession) [see Com. Code § 9110 (special rules applicable to security interests arising under Divisions 2 or 10)].
- A security interest arising under Com. Code § 4201 (agency status of collecting bank) or Com. Code § 5118 (issuer or nominated person’s security interest).
A secured transaction creates two kinds of rights. First, it creates a “security interest” in specified property, termed “collateral” [see Com. Code § 9102(a)(12) (“collateral”) that secures the payment or performance of an obligation [see Com. Code § 1201(b)(35)], and that gives the person in whose favor the security interest or agricultural lien was created the right to repossess and retain or dispose of the collateral if the person who owes the obligation fails to perform it.
A Secured Transaction commonly consists of the following documents:
- Loan Agreement/Promissory Note
- Security Agreement (defines the Secured party’s rights and the debtor’s obligations to protect the security)
- UCC-1 to be filed with the State of California (gives priority to the Secured Party against all subsequent creditors who seek a lien against the property)
We provide advice, planning and compliance with respect to Federal and California Securities law issues.
Each time we form a Corporation or other Business Entity the issue of Securities law is involved.
The issuance of securities is subject to both federal and state securities laws. A security is stock in the company (common and preferred) and debt (notes, bonds, etc.). The laws covering securities are so broad that any instrument that represents an investment in an enterprise in which the investor is relying on the efforts of others for profit is considered a security. Even a promissory note has been held to be a security. Once an investment is determined to involve a security, strict securities rules apply. There can even be criminal penalties that apply. Further, civil damages can be awarded to purchasers if the securities rules are not precisely and perfectly followed. All parties involved in the issuance of securities, included the attorney who advises upon and/or forms the new company can be liable if the investment does not succeed and an investor loses their investment.
The rules are designed to protect people who put up money as an investment in a business. In the stock market crash in the 1930s, many people lost their life savings in swindles, and since then, the government (federal and California) wants to be sure that will not happen again. Unfortunately, the laws can also make it difficult to raise capital for many honest businesses.
The goal of the laws covering sales of securities is that investors be given full disclosure of the risks involved in an investment. To accomplish this, the law usually requires that the securities must either be registered with the federal Securities and Exchange Commission (SEC) or a similar state regulatory body, and that lengthy disclosure statements be compiled and distributed.
The law is complicated and strict compliance is required. You most likely would not be able to get through the registration process on your own without an Attorney. YAHNIAN LAW CORPORATION is prepared to assist you.
At times, we have been retained to design, plan and prepare Venture Capital Agreements.
A venture capital investment is a partnership between an investor and a growing company.