How to structure a new business

By Team Zeller

17.05.2021 Business tips

How to structure a new business

Choosing the right legal structure is a crucial part of running a business.

The business structure you choose will affect your legal obligations, tax, asset protection, and reporting obligations. Regardless of whether you’re just starting out, or your business is growing, it’s important to understand the options.

While this article can’t advise which structure is best for your unique circumstances, it does explain the most common types of Australian business structures and key features of each.

  • A sole trader is an individual trading on their own.
  • In a partnership, income, losses, and control are shared among partners. 
  • A company is a legal entity, separate from its owner(s).
  • A trust is an entity that holds property for the benefit of others.
  • An association is an entity usually established for recreational, cultural or charitable purposes.

Keep reading to learn more about the types of legal structures new business owners usually consider – as well as how your obligations may differ, depending on the structure you choose.

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Types of business structures

Sole trader 

Entrepreneurs who want to run their business all on their own are likely looking at a sole trader, or sole proprietorship, legal structure. A sole proprietorship is easy and inexpensive to set up. It’s also arguably the simplest type of business structure, because no one else is involved.

Below are some of the key features of a sole proprietorship (or sole trader) business structure. 

  • Sole traders use their personal tax file number when lodging their income tax return.
  • Income reporting is simple — there is no separate business tax return, all income is reported in the sole trader’s individual tax return. 
  • Throughout the year, sole traders typically put money aside for tax time using Pay As You Go. 
  • Sole traders will need to register for Goods and Services Tax (GST) if their annual GST turnover reaches $75,000 or more.
  • A sole trader can employ staff. 

A sole proprietorship is an ideal business structure for business owners who want to be able to make all the decisions. However, it goes both ways. Sole traders also take on all accountability in the event of hardship or lawsuits. If the business goes into debt, a sole trader’s assets could be under threat. 

It’s also difficult to raise capital, if you’re planning on growing your business, and sole traders can't claim a deduction for drawing money from their business. 

Many new business owners start out with this structure, as it is relatively simple to change legal structures if you’re starting from a sole proprietorship. The same cannot be said for switching from another legal structure.  

Partnership

A partnership is a legal structure under which two or more people operate a business, distributing income or losses between themselves. Instead of a single person making all the business decisions and taking on sole responsibility, control over the business is shared among at least two — and sometimes up to 20 — people. 

Naturally, that means the risk is typically shared also. A partnership may be an ideal option for business owners who are willing to relinquish some control in exchange for more widespread accountability. Similar to the risk a sole trader faces, if the business goes into debt each partner’s assets may be under threat.

Below are some of the key features of a partnership business structure. 

  • A partnership doesn't pay income tax on the profit earned. Instead, each partner is required to report their share of income in their own individual tax return — and pay tax on their share.  
  • An ABN is required for all business dealings.
  • A partnership is required to have its own Tax File Number, and all income and deductions must be reported in an annual partnership return — which is lodged with the ATO.
  • As above, if the business’s annual GST turnover is $75,000 or more, it must be registered for GST.  

A partnership is not required to have a written partnership agreement in place, however it’s a good idea to prepare one for obvious reasons. A partnership agreement outlines how income and losses are each distributed amongst partners, and helps ensure all partners are on the same page from the outset.  

Company

In a sole proprietorship or partnership, the business owners are part of the business. A company, on the other hand, is its own legal entity. This separation means that operating a company comes with less personal risk. A company exists as its own legal entity.

Below are some of the key features of a company business structure.

  • Companies must have a TFN. 
  • Companies pay tax at the company tax rate. 
  • As above, if the business’s annual GST turnover is $75,000 or more, it must be registered for GST. 
  • A company must pay Super Guarantee Contributions (SGC) for any eligible workers. This includes the director(s) of the company.
  • A company is more expensive to register than a sole proprietorship or partnership, and the reporting requirements are also more complex. 

Whatever money the business makes belongs to the company, instead of going to the business owners. This reduces the liability of shareholders when it comes to debt and lawsuits, but it also increases the amount of startup paperwork and red tape. 

One consideration to keep in mind is that a business set up under a company structure is easier to sell or pass to someone else, as it’s set up as its own legal entity.

Trust

A trust, like a company, is a legal entity. The difference is that it is established to benefit people outside of the organisation as opposed to bringing in a profit for shareholders.

Below are some of the key features of a trust. 

  • A trust must have its own TFN and ABN. 
  • As above, if the business’s annual GST turnover is $75,000 or more, the trust must be registered for GST. 
  • Whether or not a trust is required to pay tax depends on the wording of its deed, and whether income earned is distributed to the trust’s beneficiaries. 

The profits of a trust are divided among beneficiaries, who then pay tax on the money they make. 

Incorporated Association

An association can be incorporated, or unincorporated. When an association is incorporated, it becomes a legal entity in and of itself — protecting its members from legal liabilities. Incorporation is a simple and inexpensive process, making it an ideal way to establish a legal entity through which small, community-based groups can provide a service. 

An incorporated association is intended to do good for a community typically by providing a recreational, cultural or charitable service to people  rather than make a profit for shareholders. All profits are put back into the association’s activities, rather than distributed to those involved in the business. 

Below are the key features of an incorporated association. 

  • An incorporated association will usually have members, a committee, a public officer, and a registered office. 
  • The association can accept gifts, bequests and grants, as well as buy land, take out loans and sign contracts.
  • An incorporated association can sue, and be sued. Members and officers will generally be protected against personal responsibility for any debts or liabilities incurred by the association, although they could remain personally liable for outstanding fees.   
  • An approved constitution must be in place, outlining qualifications for membership, quorums for meetings, provisions for elections, and more. 
  • Any profits made by an incorporated association are not subject to tax. 

 There are a number of qualifications that must be met before an association can become incorporated. However, the governing legislation differs in each state or territory. Further information regarding this type of business structure can be accessed via the relevant state bodies.

Choosing the right structure for your business

Choosing a legal structure requires business owners to consider how much power they want over the decision-making process, as well as how much accountability and responsibility they are willing to take on. 

When structuring a new business, or restructuring an existing business, it’s critical to understand the extent of your personal liability — as well as tax implications. Make sure to schedule a time to meet with your financial and legal advisors to discuss which legal structure best suits your particular circumstances. 

Here are some additional resources to help you choose your business structure.

Please note this article is for educational purposes only. It does not provide legal, accounting, or tax advice.