Ask An Investor: Where Should I Incorporate My Startup?

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BetaKitRoger Chabra | June 2, 2017

This week on Ask An Investor, we answer a question on where should founders incorporate their company legally.

To provide a comprehensive answer, I’ve called upon Chad Bayne, partner at law firm Osler, Hoskin &; Harcourt. Chad and I have worked on many companies together over the past decade. He is a veteran of the startup ecosystem, represents many promising startups across North America, and has been involved in countless situations from incorporation, to financing, to exit and everything in-between.

I asked Chad a series of questions on the topic of company incorporation. Here’s what he had to say.


What major things should companies think about and keep in mind when they are deciding where to incorporate their company?

When forming a company, the two primary considerations are the location of the founders and the location of the team.

What are the pros and cons of incorporating in the popular regions that you recommend (e.g. Delaware)

Canada:

Pros:

  • Permits the company’s registered office to be in any Canadian province or territory.
  • Name of the company is protected across Canada.
  • Industry Canada permits electronic filing. (Certain Canadian jurisdictions, such as Ontario, still require physical copies submitted in person in duplicate.)
  • No annual filing fees.

Cons:

  • The company requires 25% of the directors to be resident Canadian directors. (Some jurisdictions in Canada, such as British Columbia, Quebec, New Brunswick, Nova Scotia, and Yukon do not have these requirements.)
  • Because the name is protected across Canada, it is often more difficult to secure a name for the company.

Delaware:

Pros:

  • The most common jurisdiction in the US for incorporation – almost all of the material corporate law related jurisprudence comes out of Delaware courts.
  • All US VC investors and their counsel are familiar with Delaware, so it presents little friction for investment.
  • No state tax payable so long as the company does not have a permanent establishment in the state of Delaware.

Cons:

  • Annual franchise tax payable on authorized capital.

See: NCFA's Annual FinTech and Funding Rooftop Networking Event

Are there specific considerations for Canada-based entrepreneurs? what about US-based entrepreneurs?

For Canada-based entrepreneurs, there are significant tax benefits that result from having a Canadian-controlled private corporation (essentially, a Canadian corporation either incorporated federally, provincially, or territorially) that is not controlled according to law, or in fact by non-Canadian resident shareholders or public companies.

These tax benefits include:

1. Access to the enhanced (i.e. refundable) scientific research and experimental development (SR&ED) tax credit regime

2. Canada-based entrepreneurs have the ability to access their lifetime capital gains exemption on the sale of shares of a qualified small business corporation (the first $800,000+ of capital gains on the same of such shares are tax-free)

3. Enhanced tax treatment for options granted to Canadian-resident employees (including a deferral of the tax payable on the employment benefit resulting from the exercise of such options until the ultimate sale of the underlying shares). In addition, there are certain additional tax savings that may be achieved upon a liquidity event. As a result, it is generally not as tax efficient for Canada-based entrepreneurs to hold shares of a US corporation.

See: For immigrant entrepreneurs, financing is a big problem

"Sophisticated legal counsel with significant cross-border experience (both from a corporate and tax perspective) is in the best position to discuss and weigh the different options with the entrepreneurs."

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The National Crowdfunding Association of Canada (NCFA Canada) is a cross-Canada non-profit actively engaged with both social and investment crowdfunding stakeholders across the country. NCFA Canada provides education, research, leadership, support, and networking opportunities to over 1500+ members and works closely with industry, government, academia, community and eco-system partners and affiliates to create a strong and vibrant crowdfunding industry in Canada. Learn more at www.ncfacanada.org.

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