At our firm, we've helped numerous cannabis startups navigate the complexities of choosing the right business entity. Because every startup is unique and has different goals and needs, a one-size-fits-all approach just won't work. Below, I'll explore some of the key considerations we focus on when finding the optimal entity type and structure for a cannabis venture.
个体经营的弊端
Laypeople often mistakenly think that a business owned by a single person and a sole proprietorship are the same thing. Sole proprietorships, however, are generally unincorporated businesses. Imagine John Smith opens a lemonade stand and calls it John Smith Lemonade. It won't be a separate legal entity unless he files a document with his state's secretary of state.
Sole proprietorships like this completely miss out on "limited liability," the hallmark of entities like corporations, limited liability companies (LLCs), limited liability partnerships (LLPs), and some other business types. Limited liability shields the owners of a business from the debts and liabilities of the business. In other words, an owner can't be sued if the business breaches a contract or incurs another liability to a third party.
Without limited liability, a sole proprietor can be sued individually for the business's conduct. In my sole proprietorship example above, that would be the case whether John Smith or one of his employees sold spoiled lemonade that made someone sick. Generally speaking, all of that goes away for business owners who form an entity offering limited liability (yes there are some exceptions for fraud and wrongful conduct, but those are the exceptions, not the norm).
With that in mind, I'll talk about the two most common entity types we see in the cannabis space.
公司与有限责任公司
公司拥有股东（所有者），由股东选举董事来管理公司的整体运营。董事则聘请高管来处理公司的日常事务。根据各州的不同，公司类型可能多种多样。例如，加利福尼亚州就有普通股份公司、封闭式公司以及众多非营利性公司。这些公司类型各不相同，对于特定类型的业务而言，可能各有其优势。
LLCs are much simpler. Where corporations have shareholders, directors, and officers, LLCs only have members (owners). They can (but don't have to) appoint managers or even officers to run the business. But otherwise, LLC governance requirements are much simpler.
因此，大麻初创企业面临的首要问题是：它们准备承担多少治理责任。公司制虽有诸多优势，但所有者必须明白，这同时也意味着要承担更多的治理负担。
哪种企业形式在税务方面更有利？
Corporations are taxed on their income at the federal corporate tax rate is 21%. Shareholders are then taxed on their dividends, if any are paid. This is known as “double taxation” and the "C-corporation" model. Corporations can also elect to be treated as “S-corporations” for tax purposes by making an election with the IRS within a certain timeframe. S-corporation taxation is similar to partnership taxation in many ways. However, S-corporations have many restrictions that make them impractical for some businesses.
Single member LLCs are "disregarded" for tax purposes. Multi-member LLCs are taxed on a pass-through basis ("partnership" taxation). This means that profits and losses of an LLC are treated as profits and losses of its members for tax purposes unless the LLC timely elects to have C-corporation taxation. [Note, there is also something called S-corporation taxation, which is similar to partnership taxation but outside the scope of this post.]
Despite "double taxation," corporations may be the right entity for a cannabis business in some contexts. Here is an example of ours from a few years ago:
例如，一家年收入为 100,000 美元的 C 类公司需缴纳 21,000 美元的税款（100,000 美元 × 21%）。如果该企业将其全部利润以股息形式分配给股东，则个人层面需缴纳的最高税额为 23,800 美元（100,000 美元 × 23.8%）。 因此，总税额为44,800美元（21,000美元 + 23,800美元）。相比之下，合伙企业（或S型公司）的业主需缴纳的总税额更低，为37,000美元（100,000美元 × 37%）。
然而，如果计划限制向股东支付的股息金额，C型公司是更优的选择。例如，一家支付了50,000美元股息的C型公司及其股东需承担的总税负为：32,900美元 [21,000美元 + 11,900美元（50,000美元 × 23.8%）]。 在此情况下，与合伙企业相比，C型公司可节省4,100美元的税款。此外，C型公司还具有使股东/所有者免于承担联邦所得税个人责任的额外优势。
另一方面，在某些情况下，合伙企业课税可能是理想的选择，例如：
- LLC成员的个人所得税税率低于37%；
- 根据《国内税收法》第199A条的规定，各成员/合伙人有权就穿透性收入享受20%的优惠扣除；
- 该商业计划强调将现金分配给投资者，而非将现金重新投资于企业（用于增长）；
- 该企业并非零售商，因此可在税务申报中申报合理数额的销售成本（COGS）。
以上内容均不构成税务建议，但突显了企业在制定税务及实体类型决策时面临的一些主要挑战。
母公司/子公司模式如何影响实体选择？
Many cannabis ventures are structured with separate operating companies owned by a single company. Generally speaking, the operating companies are LLCs due to simplicity of operation and pass-through taxation, whereas the "parent" is a C-corporation.
Corporations tend to be the better choice for raising equity and investments, which usually happens at the parent level. Institutional investors are more comfortable investing into corporations than LLCs, where they can secure director seats, define the classes of preferred or other equity they will get, etc. Not to say this can't be done in an LLC, but the traditional C-corporation parent model tends to be the choice of most cannabis businesses.
