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This article is more than 45 days old. Given the speed at which the technology world moves, this post is probably somewhat out of date. Please keep this in mind when reading the post. If this is a tutorial, please check whether you are using the same versions mentioned in the article.

What's the best state to incorporate in? (Hint: Delaware)

AskTheVC recently addressed the question of what was the best state of incorporation. The short answer is one of 3 preferred states: "Delaware, whatever state the company is in and whatever state(s) the VCs are located in." Obviously, the last is hard to determine if you're going to incorporate before you close financing.

California is notoriously employee-friendly so it should be avoided. Some of those laws may still apply if you are based in California, but if you are elsewhere you should definitely assume those burdens.

New York is also undesirable. It's fairly balanced when it comes to dealing with owners vs. employees, but the one big red flag is Section 630 of the NYS BCL. This section states that the top 10 shareholders are liable for employee wages if the company goes out of business and employees aren't paid. This statute does not apply to foreign companies (i.e., those incorporated in other states) even if they're doing business in New York. Considering the largest shareholders are going to likely be the founders (you) and a VC, it probably makes sense to look elsewhere.

Delaware is the default for good reason.  As Jason said, "Delaware law is well-settled, generally business friendly and most lawyers in the U.S. are adapt at dealing with DE law."  The second point is perhaps the most important point initially, but it's the first point that makes you choose Delaware over another state that is as business friendly. Because Delaware has a well-established body of law, you're not going to pay to litigate those "basic" issues, where you might in a state like North Dakota which may have adopted business-friendly laws but doesn't have the precedent to draw upon.

The last point is important too, but it goes beyond lawyers being "adept" with Delaware law. After incorporation, when the company does any deal that requires legal opinion, part of the opinion will require the lawyer to validate corporate structure (i.e., "Due incorporation and valid existence"). If you're incorporated in New York or California or practically any other state, only a lawyer admitted to that state can make that opinion. If you're in Delaware, every lawyer can opine even if they're not admitted in Delaware.

If you ever want to go public, the bankers are pretty much going to require moving it there before the public offering anyway.

Only published comments... Jul 23 2007, 05:53 AM by Tim

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Nate Westheimer said:

Tim, while there may be advantages to incorporating in a state different than where the company resides, aren't there also added complexities? If my business partner and I were to found a company "in Delaware" but operate it here, wouldn't we still have to register with the State of NY to do business?

July 23, 2007 12:02 PM
 

yes to nate said:

yes nate, you would have to pay twice for filing.

once for filing the company in delaware, and again for the authority to do business in NY.

you would also have to file two tax returns, and in general deal with two sets of state paperwork. it would also make your federal returns more complicated.

if you only have a couple partners/shareholders, or have no formal employees, or are filing for corporate protection on your own (as a single shareholder owning 100% of the corp), filing in your home state is ALWAYS the best way.

July 23, 2007 9:57 PM
   

Tim said:

Yes, it would add "complexities", and you do need to file for authorization. Imke (a fellow nextNYer) lays out the case for not incorporating in Delaware: www.newyorksmallbusinesslaw.com/.../index.html

If you're a small business with a couple of partners/shareholders, have no formal employees, and - most importantly - aren't going to seek venture capital, then yes, NYS may be best.

Perhaps I should clarify the original post, which is written in the context of a technical startup that is likely going to be seeking VC money. As I said above, NYS corporate law is not particularly founder-friendly, especially Section 630. And you have to remember that a VC is going to join your board and thus be subject to state laws where you've incorporated. It's not in your best interest nor is it in the VC's best interest.

I took a course on representing technical startups, and my professor explicitly said he would NEVER incorporate in NYS and would, if at all possible, avoid California.

July 23, 2007 11:23 PM
 

carlestep@hotmail.com said:

Nevada provides greater financial flexibility and corporate control , than does the state of Delaware, and therefore it is by far the best place to incorporate. Although Delaware would definitely be second !

September 19, 2007 9:57 PM
   

Tim said:

@carlestep : As I mentioned, it's not just that the law is favorable to owners, but that it's generally well established and you don't have to pay to litigate as many issues. And the fact that you can use any lawyer for Delaware corporations can also save you money if you are located elsewhere and already have a local attorney.

September 21, 2007 4:45 PM