How to form a C corporation in Delaware

A C corporation is a separate legal entity owned by shareholders and run by a board of directors and the officers it appoints. It shields the owners' personal assets from the business's debts, and it pays its own federal income tax at a flat 21% rate. When profits are paid out as dividends, shareholders pay tax on them again, which is the "double taxation" you hear about.

A C corporation usually makes sense when you:

• Plan to raise venture capital. Most venture investors require a C corporation, because it can issue preferred stock and have unlimited shareholders, including companies and foreign investors.
• Want to offer stock options to recruit and keep employees.
• Will reinvest most profits in the business rather than pay them out, so the 21% corporate rate applies instead of the owners' personal rates.
• Hope to qualify for the small business stock exclusion. Under Section 1202, gain on qualified small business stock held long enough can be partly or fully excluded from federal tax. The rules are detailed, so check with a tax professional.

If you'd rather have profits pass through to your personal return, compare forming an LLC in Delaware or electing S corporation status in Delaware.

Your name must be distinguishable from every business already on file with the Delaware Department of State, Division of Corporations. Search the state's business records before you settle on one; the Delaware filing office's website is the place to start.

The name also needs a corporate ending. "Corporation," "Incorporated," "Company," "Limited" and their abbreviations (Corp., Inc., Co., Ltd.) are the usual choices, but Delaware sets its own list, so confirm it before you file. Words that suggest a regulated business, such as "Bank" or "Insurance," generally need approval or a license.

Before you commit, check that the matching domain is free and search the USPTO trademark database so the name won't collide with a registered mark. Our guide to choosing a business name covers the details.

Every Delaware corporation must name a registered agent: a person or company with a physical street address in Delaware that accepts lawsuits and official state mail for the corporation during business hours. A P.O. box doesn't qualify.

You can name yourself or another officer if you have a Delaware street address and are reliably there during business hours. Many owners use a commercial agent instead, which keeps a home address off the public record and makes sure nothing time-sensitive is missed. EZ Entity Setup can serve as your registered agent, and it's included with the Advanced and Premium plans.

Settle a few structural questions before you file, because the Certificate of Incorporation asks about them:

• Authorized shares. The most shares the corporation may issue. Founders commonly authorize far more than they issue on day one, which leaves room for investors and option grants.
• Par value. The nominal minimum price per share. Many founders choose a very low par value, such as $0.0001, when the state allows it.
• Incorporator. The person or company that signs and submits the filing. It can be you, or the service filing for you.
• Directors and officers. The board oversees the company and appoints officers, typically a president, a secretary and a treasurer. In a small corporation one person can often hold several roles.

Submit the Certificate of Incorporation to the Delaware Department of State, Division of Corporations. The state filing fee is $109. Minimum fee; it varies with authorized stock and adds $9 for each page after the first. Certified copies cost $50 each.

The filing generally lists the corporation's name, its registered agent and address, its authorized shares and the incorporator. Once Delaware approves it, the corporation legally exists, and the approved document becomes the first page of your corporate records.

Bylaws are the corporation's internal rulebook: how directors are elected, how meetings are called, how votes work and what each officer does. They aren't filed with Delaware, but banks, investors and auditors will expect to see them.

Right after approval, the initial directors (or the incorporator, if no directors were named) hold an organizational meeting or sign a written consent to:

• adopt the bylaws
• elect officers
• authorize issuing the founders' shares
• approve opening a bank account and choose a fiscal year

Record the decisions in minutes and keep them with your Certificate of Incorporation in a corporate records book.

Issue shares to each founder in exchange for cash, property or services, and record every issuance in a stock ledger. Many companies now use book-entry shares instead of paper certificates.

If founders' shares vest over time, each founder should consider filing an 83(b) election with the IRS. It must be filed within 30 days of receiving the stock, and a missed deadline can't be fixed later. A stock purchase agreement for each founder documents the price, the vesting schedule and the company's repurchase rights.

An Employer Identification Number is the corporation's federal tax ID. You need one to open a business bank account, run payroll and file the corporate tax return. The IRS issues it for free, and an online application gets you the number right away. Read what an EIN is and how to get one.

What to know about how Delaware taxes corporations:

• Franchise tax is due with the report: minimum $175 under the Authorized Shares method or $400 under the Assumed Par Value Capital method; maximum $200,000 ($250,000 for Large Corporate Filers).
• Missing the March 1 report deadline adds a $200 penalty, plus 1.5% interest per month on unpaid tax.
• Corporations doing business in Delaware also owe 8.7% corporate income tax on Delaware-apportioned income.

Depending on what you sell and whether you hire, you may also need to:

• register for sales tax if you sell taxable goods or services (see our sales tax license guide)
• register for state payroll withholding and unemployment insurance before your first payroll
• get city or county business licenses, plus any professional or industry licenses your work requires

Delaware requires the Annual Franchise Tax Report every year.

• When it's due: March 1 each year.
• State fee: $50

Beyond the state report, a corporation stays in good standing by:

• keeping a registered agent on file and telling the state when it changes
• filing its federal return, Form 1120, by the 15th day of the fourth month after its tax year ends (April 15 for a calendar year)
• holding the shareholder and board meetings its bylaws require, or acting by written consent, and keeping minutes
• keeping business money in its own bank account, separate from yours (see opening a business bank account)

Missing a report or fee can lead the state to revoke or dissolve the corporation, which can put your liability protection at risk. Our guide to annual reports and franchise taxes explains how to stay ahead of it, and Worry-free compliance tracks the deadlines and files for you.

State fees change from time to time. When you order through EZ Entity Setup, you see the exact state fee before you pay.

Any Delaware corporation that meets the IRS requirements can elect S corporation status by filing Form 2553. The corporation stays the same legal entity; only its tax treatment changes, so profits pass through to the shareholders' personal returns instead of being taxed at the corporate level.

Delaware recognizes the federal S election; S corporations with Delaware-source income file Form SCT-RTN.

Startups that plan to raise venture capital almost always stay C corporations, because an S corporation can't have more than 100 shareholders, can't have corporate or foreign shareholders and can issue only one class of stock. The Delaware S corporation guide covers that path step by step.