EP21: Marc Miles Discusses 7 Things Every Painting Contractor Must Know To Protect Their Business
SUMMARY:
In this episode of DYB Podcast, Steve interviews Marc Miles, his business attorney based out of Venice, Florida specializing in protecting against IRS and state collections.
Marc shares a plethora of useful knowledge about finding real solutions to the unknowns that could potentially hurt your business. From employee timesheets to written agreements, Marc talks in-depth about how to navigate the different undesirable situations you and your business may face.
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WHAT YOU’LL LEARN:
-How to protect yourself and your business from unknown factors
-The legal standing of your business and your money
-Understanding the goals of your business in advance
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LISTEN HERE:
QUOTES:
“If you do have something in writing, you’re bound by it, so you need to make sure you’re comfortable with it.”
“If you’re going to form a business entity, 95% of the time, LLC is the way to go.”
“A written agreement isn’t ‘I don’t trust you,’ it’s clarifying expectations and giving yourself a chance to void if something unfortunate happens.”
“If you want just your books done right, and you have no worries, your EA is irrelevant.”
“When you form the business, think about what your succession plan is going forward.”
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HIGHLIGHTS:
[03:25] The big unknowns that can hurt your business and how to prepare for those unknowns
[09:33] Proper ways to protect yourself from false claims from employees
[15:14] What to stay on top of regarding the IRS and what to do when dealing with tax issues
[26:16] The difference between sole-proprietors and corporations
[34:15] Partnerships, establishing trust and understanding what your expectations are from the beginning
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LINKS & RESOURCES MENTIONED IN THIS EPISODE:
[APPS]
[GROUPS]
ADDITIONAL FREE RESOURCES:
EP01 9 Steps to Doubling Your Business Part 1
Video Testimonial Checklist PDF
3 Steps To Get Leads From FB PDF
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Connect with Marc Miles on Facebook here
Connect with Steve on Facebook here
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Thank you very much for joining us today! If you received value, would you take a quick few seconds and leave us a review on iTunes, please?
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STEVE: What happened?
MARC: So, I had this client, he was behind on his IRS payments, he had an ex-wife and had some issues, things didn’t work out well, she left him high and dry, he was in another relationship, he was trying to make that relationship work, but the IRS kept following him, he had a car, he had a business he was trying to start and his soon-to-be wife was like, “I am not marrying you till you get this fixed, if you don’t get this fixed, I am leaving you,” so he is like, you’ve got to help me, I said I can do that, so he comes to me, he said, where are you at, we took a look at this whole situation, we said no problem, we can do this, this and this, we set everything up, I talked to the revenue officer, she was fine, we submitted the paper work and he ended up paying about, maybe $8,000 on what had been a $110,000 liability… And his girlfriend at the time married him afterward, saying we got together and if it hadn’t been for you, while I was doing this, she would not have stopped there…
STEVE: Woah, okay… Hello and welcome Marc Miles of the law offices of Marc J. Miles P.A, welcome to the show.
MARC: Thank you, Steve.
STEVE: Marc, what does P.A mean?
MARC: P.A stands for Professional Association, and it’s a designation that is able to be used by individuals who are licensed by the county moral of the States, when they formed a business entity that says, they can only practice with the entity that which they are licensed for. So, if you see a lawyer with P.A or PLC, you know that is their business, all they do is the practice of law, they don’t serve Mc Donald’s fries on the side…
STEVE: Ah… okay, glad to have you on the show. For everybody listening, Marc Miles is our business attorney, and he has been, for years, he helped us when we were at Burnett Painting, he wrote the agreement when we sold Burnett Painting and he has worked with us ever since, for everything we’ve done, without going in details… and Marc is outstanding keep him close cause he’s a great guy to know and I was kidding around with him before we get into this. Marc, you are too big hearted to be an attorney… it’s not hard and I kind of wonder how you got into this industry… But, fortunately, he is really good at what he does and so I thought, Marc, we’ve got to get you on the show and let’s share somethings that some business owners, painting contractors out there need to know, to protect themselves, protect their businesses and the unknowns right, so we know, what we know and we don’t know what we don’t know, that’s really the dangerous part huh…
MARC: And that’s what I try to help people to say, here’s what you are not aware of, let me ask these questions, you decide, but I hope you can get there so you can think about these things that you might not otherwise think of.
STEVE: Hmm… Absolutely, so for example, what are some of the big unknowns?
MARC: Okay, so the big unknown… the biggest thing especially with trade contractors and painters is, whether your clients are going to pay you or not, a lot of times whether or not you are having an agreement or non-agreement to sign, that states the payment terms and other terms of agreement, you have no idea what the client is going to go, are they going to try to want to stiff you, do they want to change? Do they say no? I am not paying until you repaint the whole thing? So, one of the biggest unknowns is try to eliminate the ways the client has not to pay you.
STEVE: Uh… Okay, now this is really good, this is especially used for high contract or long contract work like commercial, industrial or even residential for your construction, absolutely… So, what are some ways? How can you…?
MARC: The first is, you put the total price in the writing in the contract, not just a quote, the quote says, here’s my estimate, here’s your price, but when you have them in a contract say, this is the price and what’s paid, you are also saying what you do it for, and you haven’t signed, people don’t think an estimate is binding, people sees a paper says, estimate, sign, yeah, I agree to that amount, but they don’t see it as, this is a contract I am… subject to, there are legal remedies to it and that’s one of the easiest ways to sort of… that’s how you do it, so you have a little, it doesn’t have to be a 10-page contract, it can be a 1-page contract, but it looks like a contract, so it impresses upon them, the seriousness as opposed to, here is my quick book invoice, sign here, that says I agree…
STEVE: Uh, woah. Okay, so this is a really good point is and I know opinions to this is very common practice, quick books, invoice, estimates, whether it’s an estimating program, they all say estimate stuff. If I heard you correctly, you were saying it should say, to set the it should say contract, what about agreement? Can it say agreement?
MARC: Absolutely, you could say agreement, no problem. And then it should contain a couple other things that… you people have seen in contracts before, you’ve seen references to if the contract is breached or if not paid in x days or you know, choice of law, if we disagree, we go to court here, you know… throw some of those things in there, you know… Now, don’t be smart about it, don’t put something that is going to hurt you because you don’t really know what it is, but throw some other things in there, so it looks like an agreement or contract, more than just an estimate.
STEVE: So, silly question here, I put this together when I was in L.A, is if we should have a lawyer take a look at it?
MARC: Have someone take a look at it, over, just see it and ask some questions, yeah. Because every state is going to be different and some things you maybe find difficult to put in one state versus another, so…
STEVE: Okay. Thank you. What are some ways that business owners… because you know, I mean you run your own practice, it’s a ton of work and you take all the risk? Now if something happens to you, you can sue them for free, and if something happens to us, the owner… how can business owners protect themselves against faulty claims. Like here is an example, I was talking to a friend of mine and he had paid on of his guys an extra day, it was a holiday or something and it ended up being 48 hours and he isn’t paying five and a half and there was a day he didn’t even work, he was just being generous and paying the next 8 hours, well he came back and sued him, ended up causing him $30,000, because he didn’t pay him five and a half for that extra 8 hours that he paid him…
MARC: And he brought the state in as well, I am sure, because the state came in and probably said, let’s take a look at your records as well… Absolutely, so yes, so one of the things you want to do is, some people use independent contractors, while some people use employees, and there’s two different ways you have to handle it, you have an independent contractor, you need to clearly meet… First of all, if you are using an independent contractor, you need to have an agreement, end of story, why? Because if you have good insurance, your insurance might have clause for not having an agreement. I’ve got a situation right now, a client of mine that is relatively large painting company has got major insurance, that’s $100,000 job, $300,000 jobs, had a job where the sub he used, ended up screwing up, causing maybe $1,500 or $1,900 worth of damage, but if he wants to go through his insurance, they are like you didn’t use sub-contractor agreement, even though I drafted one for him. And now they are saying, if you are going to use the insurance, it’s going to cost you $15,000… So, now he is going to pay it out of the pocket or pay the $15,000. So, if you are going to use a contractor, make sure the insurance always have an agreement, even for that reason, but the agreement contains a schedule, the schedule says, here is how I pay you, and you will be specific in that schedule, this is how I get paid and then you only pay by that schedule… that’s for contractors
STEVE: For sub-contractors, so if you are working with subs, you have subs, make sure you have a written agreement?
MARC: Yes, absolutely…
STEVE: Okay, what should be in that agreement? The schedule? The payment schedule?
MARC: The schedule, their insurance and their compliance with the law basically says, you agree you have x amount insurance and your license etcetera, whatever you have with the state, failure to do so is a breach. As well as the fact that if you don’t get paid, they don’t get paid, so you want to make sure that if you are doing the job and your sub and you get stiffed by the owner, you are not going to have to pay your sub out of pocket or not. Now, some people, they say that’s a little hard to get, maybe fair, but if you take a look at almost every big GC contracts that’s out there, from the big players, I would guarantee you that is in there.
STEVE: Hmm… I wouldn’t be surprised actually… So, what about employees, what are some proper things, what are some, things we need to be doing to protect ourselves, faulty claims against employees, just making sure all our basis are covered?
MARC: The biggest thing to do is, the time-tracking of hours, you have to have a system where their hours are tracked and you can see that, relatively easily…
STEVE: Okay…
MARC: Then the best thing to do is, if you are doing payroll, maybe you have someone else doing payroll, maybe you are doing it yourself. If you have someone else doing payroll, they will automatically know the hours when you calculate to get to know, are we yet over-time? Is it a holiday? Do we pay 5 and a half? Now, if you use QuickBooks payroll, it will usually do the calculation for you, but if not, they will know, it will let you keep track, because once you get that 40 hours, the rules change, once you hit the holidays, the rules change, and they are different in every state, but wherever the state, you need to know that. So, you need to be able to keep track of hours because what happens if they put, we’ve worked this time and you are like, hey you’ve worked 42 hours already, based on this job in here, you only really worked 32 hours, you know, something… I don’t know, I mean God forbid… few hours here and there a day. Track hours to be able to track the hours consistently, that’s number one…
STEVE: There is an app we like to… that we used with Burnette Painting and that many DYB use, we call it T-sheets, I don’t know if you are familiar with it, but…
MARC: Not a lot but okay… as long as it is hours that are recorded and you can see those hours on a regular basis so that you can catch anything, you have to still review and catch everything at a time, because what a lot of people do is, they think overtime is time and a half, that’s the only thing they think of, they don’t think about, sick or vacation, whether it’s state mandate, certain things, and that should be talking to… even talking to a payroll person they know, you know good idea of that, if a not local attorney is what makes that. And that’s just actually a brief conversation just to get some conversations to help make sure that you don’t blow that. The other thing is don’t do a written agreement, depends on what state you are in, lots of state are at will, which means as long as you don’t have it written, you can sort of do what you like with their employment and how they are employed and how long they are employed. So, very few rules such as over-time, wages, etcetera, but if you do put something into writing, you are bound by it, so you need to make sure you are really comfortable with what you have, if you have something in writing.
STEVE: Interesting, so you have more liability with the employee…
MARC: Potentially it is because you can be held to everything that you held them to, you can be held if you don’t do it, so you have 6 employees, and the rule states that employees do not get vacation until they have worked at least 3 months and ask for two weeks in advance and you let one guy have his one week in advance, now everybody gets to have one week in advance because you let them do it, despite the fact that the agreement, Emmanuel or whatever says two weeks
STEVE: Hmmm, now you mentioned at will, can you impact that for us please?
MARC: Sure, absolutely I will…
STEVE: Okay
MARC: So, a lot of states… actually I am not sure, I think it’s less states… at will, which means, whenever you go to work for somebody, there are no set terms, there are no set agreements, you can work whatever you agree to, if it’s in written then it’s a great upon, if not, it’s really tough and you can let them go at any time for any reason, subject to of the course federal discrimination, you can’t let the person go because they are black, you can’t let them go because they are female, you know, those kind of stuff you can’t do, no matter what, that’s a federal law that overrides. But if you don’t like the way the person drives his car, you don’t like the way he looks on the job, done… goodbye…
STEVE: About tattoos…
MARC: Absolutely… Sorry, I don’t like tattoo, done… You don’t have to give him a chance to rectify, you are done, goodbye…
STEVE: Okay…
MARC: So, everybody needs to find if they are in at will state or not, so if you are, great, if not, then you need to check with the local attorney there, because I can’t tell you what some of the restrictions on firing somebody can be, sometimes you have to give them notice, you have to give them opportunity and it just depends on that state.
STEVE: Okay, makes sense, interesting. So, how about IRS? What are some?… I don’t know if I can ask you this…
MARC: You can ask whatever and I have to answer it…
STEVE: How do you feel, like where does the IRS ranks and your Christmas card list?
MARC: Actually, believe it or not, the IRS ranks decently, the problem is congress, they are the ones, that are so low, I am like don’t ever pay them in front of me when I have a baseball bat… Because all of these since about say 1999, most of the issues we really have with IRS, is really congress issues, it says, you know what, we have come up with this plan, we are not going to spend a lot of time specifics here, you, IRS, figure it out, if we don’t like it, we will tell you, you are wrong and then go implement it without any real guidance from us and then when people complain, deal with it until they complain too much then we will try to address it, and that brings the IRS into doing things that they really shouldn’t be involved in, and having to make decisions that really shouldn’t be made by them, but congress doesn’t do it, so…
STEVE: So, IRS has been taking the wrap the whole time
MARC: They take the wrap a lot of time. Now, back in the early 1990s and late 80s, IRS deserved the wrap, they were doing stuff, it was like, we don’t care about you, you aren’t human, done, done, done… Now, it’s a little better, I mean most of the people I work with at the IRS are very reasonable, they are not push-overs unfortunately, but they are reasonable, at least, so…
STEVE: So, what are some things that we need to stay on top of, to protect ourselves with IRS?
MARC: The biggest, most important is if you have employees, you need to make sure you are paying those payroll taxes on time. So quickly, when you have an employee, you pay them their wage, you withhold a certain amount based on their W4, plus you pay 7.65% of the social security at one point, something percent, whatever… 7.65% total between the two and social security, Medicare, that federal withholding plus the Medicare and social security withhold from the employee’s pay, is not your money, that’s their money that goes to the government, failure to pay that, and the government can come after you, personally for that amount, regardless of what you think you set up, business protection-wise.
STEVE: So, are these the 941s that we file?
MARC: Yes, everything you file, the 941, the payments you are making, the 941, you need to make sure you pay those employee taxes first and foremost, end of story, pay those, it’s not your money, people try to say, I won’t pay this week and I will try to do next week and catch up, they can still be very, very dangerous game, it’s sort of like gambling, like oops, I didn’t hit black this time, I will get black again, alright Mr. black, I will bet it one more time, maybe eventually I’ll get to black and try to win. You know… do you really want to take that risk? You probably don’t. Number two is, for those in some states… if you have sales tax, file and pay that sales tax as quickly as possible. In Florida, I tell people, if you are a Florida resident and you don’t pay your federal taxes, IRS can come after you and take 90-120 days, and they will start coming after you, Florida department revenue… 90 minutes if they get serious… the state can move like that, and most states can move like that, most states have far more strong to grab and attach to people, for non-payment of state taxes than the IRS does. So, whatever your state tax is, if you have sales tax and… or similar collection taxes, pay those, because they are the people that can go after you ASAP. IRS, you can buy time, you can do stuff, a lot more than you can with the state.
STEVE: Okay, that is really good to know. Now, what’s the first thing somebody should do if they received one of those dreaded letters from the IRS?
MARC: The one that says, we think you owe something?
STEVE: Yes, that one…
MARC: Okay, there is a lot of letters from the IRS that people dread… So, there’s two types of letters, there is the one that says that, excuse me, we want to look at your return, because we don’t like this $200,000 in supplies that you put and then we know you owe us money, now if you don’t do something within 30 days, we are going to take action. So, there’s two different letters, one is on one side and one is on the other, if you get that first letter that says, we don’t like this on your return, go back and make sure you check you have your receipt and your documents, in that statement. Once you have those, then decide, do I want to talk to my CPA if my CPA can help or if it is something simple. Sometimes it’s as simple as, we just need to see what your travel is, and your travel was, for example, that year was just twice as large, because you went to two more conferences and you’ve got plane tickets and the thing, you probably have to go and say, here, sure, no problem, plane ticket… here and as long as all your receipts match up to what’s on the return, you know, you are probably fine. Now if they go and say, we want to see your bank statement, everything on the return, now you probably need to talk to that CPA, because they need to know what limits there are, when they are doing this, not you.
STEVE: So, that’s a great point, CPAs… about Florida, that’s fantastic. What does somebody look for in a CPA? How would somebody know a great CPA from a forum floor?
MARC: The first thing usually is to check whether they have the CPA designation, those that have CPA, which means they’ve got the license, have undergone a higher level, 99 times out of a 100, a higher level of training education to know what has to be done. Now, does that means they are going to form that they have education? No, obviously not, so the best thing to do is have an interview with them, phone or face, it doesn’t matter, and then ask them questions about your stuff. Say, what can I do about this? What can I do about that? And see how they answer, and if they are one of the people that goes, oh you can do A or B, and that’s it… and they are probably one of these people that is following up on the forum or it depends, like what are we looking for, or they can give you a little more and say, well, what are you trying to achieve? They will ask you, what are you trying to obtain? What are you trying to achieve? What’s the ultimate goal to fit it in, that’s one part, instead of saying, just oh, well, keep your receipts or make sure the mileage checks, those one line answers to three or four questions indicate the person is probably not, either is engaged and they are going to give you the time, or they are probably more about, here it is.
STEVE: Okay, so this is really good, we are going to pause here for a moment, because… this is really good, if I heard you correctly, what you are saying is if they have a simple A or B answer, that’s no good?
MARC: Usually, yes…
STEVE: Okay, usually… these situations are dynamic…
MARC: Yes, and they depend on the overall… So, obviously once have a CPA in your account say, hey, Marc, can I deduct this? And he goes, no, that’s okay, that happens, this time you are not asking stuff, the answer is simple, no you can’t, okay do this, yes you can. But when you are interviewing a CPA and in this interview, don’t just say, oh, I know somebody, okay, here you go, stuff… talk to them, interview them, so, I say interview attorneys too, don’t just… whenever you have a professional, especially a professional, interview them and talk to them, make sure you think that they can do it, they are engaged and you can work with them.
STEVE: Fantastic. What about these small shops who… maybe just a couple of employees, but the and for one thing I know about myself and I know about most entrepreneurs is, we hate the books…
MARC: Yes, so that is why you have a good CPA or a book keeper and ask them to do a monthly or quarterly book keeping and here is the thing, they are going to give you a quote, they are going to ask to see some stuff that can give you a valid quote of how much it is going to cost per month to do everything. And what you do when you get that quote and you shop around, you go to a couple of different accounts of CPAs and get quotes, then you ask yourself and you do an exam that I am sure you tell everybody to do, how much time does it take you, as the business owner to do this, this and this and you add up all these hours to do all these stuff that they are doing in this proposal. Now, ask yourself, how much money you could have earned with those hours in your business, which is what you are good at, as opposed to doing this and work it out.
STEVE: Absolutely, we have a video, we have a link to it in the show notes called “Ownership Responsibility Value” and work through that exact formula. So, that’s great, how would… how does somebody know, so okay, find a couple of 2, 3 book keepers, how do you interview them and what do you do to open up your books… do you say what do you think?
MARC: No, when you go to them, you talk to them, you ask them a little bit… hey Marc, how have you been down here, how long have you been doing this? You know if they are a CPA, you know how long they have been a CPA… and then they say, so, here is my situation, give a brief overview of my situation, I have this, I do that, and see what they say, some people may go straight to, hey, can I see the tax return? Some people may ask questions, there is really not a right or wrong there, because especially if you start getting a little long-winded, they are going to say, just give me the tax return, at this point you are explaining all that stuff and it’s like you are probably going to a little more extraneous details than they actually need…
STEVE: Okay…
MARC: But, bring the tax returns, bring the bank statements and you ask them questions about… do you feel comfortable with them? Ask them some basics, hey dude, do you… how many other painting companies do you deal with? How many of your clients are under 3 employees? How many of your practice is business versus personal? Because all CPAs do 10, 40 individual tax returns. So, how much individual do you do? If the person does 95% individual and has 3 businesses, maybe you say, okay, may we look at someone else, maybe you are like, hey I am going to be the forth, I don’t need a lot of handholding, okay, or you can go to someone who’s got 85% of the businesses and most of the individuals in the business. And then, the thing is more of a judgement at that point, how much does that matter to you? What’s the feeling you got from that? Because there is no right or wrong answer at that point, now you sort of feel, what are they doing in there, in their field and then how many employees they have, because if they’ve got several employees, the chances of you actually getting to them or them actually really looking at your stuff are probably slim than none and they may be awesome, the junior who they’ve hired, may not be at the same level that they are, and if you are going to get junior doing your tax return, do you have the same confidence that… you know…
STEVE: And would you say it’s just as important to check and refer us as we would prior an employee?
MARC: Absolutely… who we know, if you go find a CPA, have 2 or 3 people, that’s why I like BNIs, it’s a great resource, because most probably if someone isn’t BNI, they’ve got testimonials, hope… if nobody is giving testimonials then there should be a problem, they should begin there, that’s the start, so if you can get testimonials from people, ask people, if you know somebody says here, go and ask on… or do the whole Facebook recommendation thing, go and ask Facebook, what is recommended for CPA and see who comes up with it, if you got somebody come up with 6 names, then name 17 times out of 40, that’s probably a good one to start with…
STEVE: Yeah, absolutely. Now, what is an EA? And how important is that a CPA is an EA? And I believe you are an EA
MARC: No, I am not… An EA is an Enrolled Agent, and that is an individual who has taken the exam that the IRS puts out, to be able to practice before the Internal Revenue Service. Me, being an attorney and CPAs being the CPA are automatically granted that by right, nature of our license to do so as long as we are in good standing in A state.
STEVE: Interesting, that’s why I though you are an EA
MARC: Yeah, because I can do it. So, if you want just your books done right and you have no worries, your EA is irrelevant, because the EA is when you have tax issues and need them resolved. Hopefully you are not getting to that point…
STEVE: Okay, absolutely… let’s circle back a little bit… we talked about corporations, what is the difference between sole proprietor, LLC, S-corp, C-corp and impact this slowly for us, for those who want to know if they are in the right one or they should make a shift
MARC: Well, and that’s going to be after some consultation, that’s really hard to make, a sole proprietor is somebody who has nothing, but use their name… Steve Burnette painting, not Burnett 1800 painting, Steve Burnette painting, Donald Robert CPA, those are sole proprietors, they don’t have any requirements to deal with bank accounts or whatever, they do have to get an EIN, if they have employees, and everything they earned on their profit is subject to self-employment tax, which is an extra tax above income tax… On the net profit, corporations and LLCs are business entities, why do people say C-corps, S-corps… at the state level, it is a corporation, you form a corporation or you form a limited liability company, and people form these for two reasons, tax or protection, 99 times out of a 100, there are some exceptions to the rule and each day it is a little different, but a corporation is the vehicle designed for large companies, they are going to have public shareholders, make large amount of money, have a lot of certain deductions and have to pay out to the members and there was a way to keep the protection inside the company, so that members that were buying in weren’t at risk. The cost of that was paying an extra inside tax on the money, before the money got out to people, who received it and had to pay their tax, so S-corporation decided to say, we are going to make a difference, we are going to give you the corporation and give you the protection but the income will just flow out so you only pay tax once. But there are some restrictions on that, for example, you can’t have two different classes of stock when people invest, like you had a preferred shares, but you can’t have preferred shares in this corporation, you can’t have more than a hundred people, you can’t have a non-US resident, alien or citizen be a shareholder and the most important in an S corporation, if one partner takes money out, the other partner has to take their share out as well…
STEVE: Interesting…
MARC: Whether you like it or not…
STEVE: What’s the difference in protection between S and an LLC?
MARC: Okay, whether it is S or C, protection on the inside level doesn’t matter… so, corporation and LLCs, doesn’t… corporation… when you hear S or C, that’s a federal, sometimes state tax issue only, it has no effect on the protection of a corporation or not, whether it is C or S, the protection from the corporation, from a legal stand point is the same, no matter what… So, there’s two types of protection; inside and outside. Inside protection is simply that you are doing something on the job, within the job… something goes wrong and you get sued and that keeps your personal assets from being attached, you close down the business if you have to, but walk away, that’s within the business, no matter what, you are covered, you are protected, that’s what we call inside protection, there is no difference if you do it right between a corporation or an LLC, you get the same either or…. It’s the outside protection that there’s a huge difference, so outside protection is, something happens to you outside of the business, such as you many have back alimony you haven’t paid or child support that you haven’t paid, your behind done or you have a judgement from when you were trying to get your life together, say you have your house closed, they are not going to forgive the loan and they are still going to come after you for the money, it is outside your business, but they are going to come after you. A corporation does to protect you from that, your corporate shares are assets and they can attach those.
STEVE: Okay, but how relevant are corporate shares to a painting company?
MARC: Really, because most states require shares to be issued if you have a corporation and your share is your evidence of ownership, so if you are the 100% owner, you are supposed to have shares and if you have shares and they get attached, guess who owns the company, the corporation now, not you, your creditor…
(After the Break)
STEVE: How much protection does a sole proprietor have?
MARC: None… Zilch in any which way he performs, no inside, no outside, end of story.
STEVE: Okay, so if somebody started a painting company and maybe they are a sole proprietor, they are just getting going, should they go? What should they do? Should they… I heard you say it was dynamic…
MARC: Yeah
STEVE: So, any guidance what they should do?
MARC: Yes, so basically, look about… first and foremost, if you are just starting, are you going to have employees and contractors or not? If you are going to have employees and contractors, most especially employees, form an entity, end of story. No matter what, form the entity, it’s not a question of anything else, because if that employee or that contractor does something wrong and you get sued, no entity, no protection…
STEVE: Okay
MARC: End of story, if you are not going to hire or use anybody else, it’s just you and your truck and your paint brush, your ladder, it’s probably cheaper to just get some insurance for what you are doing and make sure you have some decent insurance, and go forward…
STEVE: So, just some liability or…
MARC: Yeah, liability insurance, or if they don’t have an umbrella policy, if they are on the house, once they get an umbrella policy, because if you are just one person doing everything yourself, you don’t really get much protection from the company and what are you really going to do to cause the damage as obviously as the painter, I mean at what point are you going to cause more than two million dollars for the damage, it’s pretty hard, as a sole proprietor, just going around. Now, once you have contractors, a lot of the people, they are driving around or they are doing different things, and their effect is going to affect a whole lot more people rather than you, now you are going to get more risk.
STEVE: Okay, you’ve mentioned partnerships a couple of times, so partnerships can be sticky for example… there is a common statistic that marriages will have 50% chance of ending up in divorce, what is it for partnership, do you know?
MARC: No, I don’t have a number, sorry…
STEVE: That’s okay, I was just curious, I didn’t think there might be one, but what are some things… I think it was just the last episode, we had four brothers on and they are partners, unfortunately they are brothers and they are just awesome Christian, so they’ve got a strong understanding and character and values, but that’s not the case for most partnerships, right? They all started off great, hey 50-50, it’s going to be awesome, we are going to make a ton of money, it’s will be great…
MARC: Correct, so there’s two part to it, one, there is a part that is themselves and there is a part after… So, let’s take a part that is themselves, you are going to go into business with somebody, could be your wife, significant other, it could be your brother or somebody you have just known for 5 years that says, hey, let’s walk together, the biggest thing in the world is expectations. Before you can get started, what are your expectations for the company? And what are your expectations within this company, what are mine? What’s the work load split? How much work are we putting in? how much are we expecting? Can I afford to live on what we have as a budget while we are putting this together, before it grows to be the next billion-dollar company? Set those expectations down and talk about them, you don’t even need to get the attorney involved yet, because if you don’t agree that, hey, I thought you were going to put in 50% of the money and I am going to put in 50% of the money and you are now like, no you are going to put in 90% and I am going to put in 10% and I was going to work this amount. Well, that’s a direct split you can’t reconcile, end of story, you don’t even need the attorney, so expectations starting off, what are the expectations to find them? And then what’s the work load going to be? As an example, I had somebody call me, he was like, hey, my friend wants me to go and work for him, he wants me to be a partner in his business, and I would handle the finance and the contract etcetera and he would do the marketing and customer and actual web production, he was like, but I don’t trust him, he was like, because I don’t know if he is going to be straight with the money and I tell him to stop, my first response was, don’t go into business with him, he was like, no I want to do this and I said okay, fine, I will draft a disagreement, he is like, okay, no, change it, I want to do a new LLC and I am like, really? I am like, I can do this, but I am telling you, from your friend and as a client, it’s not a good idea, so I went and did it, he’s like, okay, let’s work on this, he comes back to me and says, no, I changed my mind, I am not going to, after realizing. You have to be able to trust this partner, I tell people all the time, you are going to business with this person, okay, do you trust them with the key to your house and with your wife and child? If the answer is no, you need to rethink this, or at least think it over seriously before you move forward… if you don’t trust this person, it’s ultimately a matter of trust in the beginning, do you really trust this person? Now, people change and you don’t know, but you ask that question, you could think you trust this person, but again, we don’t know what happens until the going gets rough sometimes, when people show what they are made of, that kind of stuff…
STEVE: Absolutely, that’s really good… So, expectations, and do you trust them enough to keep them with your wife and children…
MARC: Yes, once you’ve got to that point and you are sure, that’s when you go to the attorney and you say, we want this and we want this, in writing as to what we are going to do, well, is this a corporation which has a shareholder agreement or an LLC which has an operating agreement? You can put this stuff in there, now what people don’t realize is corporations, generally, people hear corporations, they hear bye-laws, bye-laws don’t address all these issues that I talked about and in an LLC, you have to do an operating agreement, that has addressed everything, you address those if you do it right. Of course if you don’t, if you put a trained monkey don’t do one, you basically got nothing, but if you put a you can do a shareholder agreement to address all these, an LLC will not need to address everything and if you don’t address it, I tell people, if you don’t address it with your business partner now, you are going to end up paying ten times what it would have cost you to have done this right in the first place, to have the courts tell you what you are going to be doing. And most people don’t usually like that, that’s not a win-win situation…
STEVE: Speaking of win-wins, most partnerships start as 50-50, why might that be a really bad idea?
MARC: One of the reasons is because a lot of partnerships are like 50-50, but at the end, we are going to go vote, and are going to try to make decisions, at 50-50, you are deadlocked, so how do you break that deadlock? And if you can’t break that deadlock you can’t move forward. So your company can stall without proper mechanism; 50-50. Second, a lot of people want to do something where they can get minority preferential treatment in bids and contracts, if it’s female or other minority owned, so all you can do is make a 51-49 or 60-40 split, but if you create an LLC, you can put all these protections in, just because you are the 40% person, you are not getting screwed by the person that has the majority votes, that’s one of the things that I love… I am doing that for a company right now, he’s got this product that he’s selling out, you know he wants to get the minority preference, he wants to put his wife as the majority owner, he wants to preferred himself in case of anything happens with him and his wife, that she runs the company and makes all the decisions, and she doesn’t really get the company. So, I as a good attorney can fix that, you can play with that, in an LLC, it’s a lot harder in a corporation.
STEVE: So, somebody should have insured a majority, but just because you get the majority doesn’t mean you can’t protect yourself.
MARC: Correct. And sometimes you can say, you know what? There’s a majority for voting, there’s a majority for money, so in a corporation, you are sort of stuck, but in someone, especially if passed to an S-corporation, but in LLC, you could say, listen, you are going to put in more money in, fair enough, we will give you more money back out, ahead of me, but I want 50% control, so we have to agree, or 51-49 and I want the control, you can do that split. Now, a lot of times, what I do, I tell people, if you have the deadlock, I put in the agreement, you find the third party that knows that area and ask him, because people go, oh, let’s come to the attorney and I am like, well that’s all fine and good, but if you guys are discussing a painting issue or growing your painting company, why are you coming to me to ask for expert opinion? I don’t know, I don’t know about painting, like I am not going to help you out on that, go to somebody else that knows that and ask them. Now, legal stuff, yeah, come to me and ask, and say hey, we need financial advice? Come ask me, but… so, I say, find an expert and talk to them… but if you don’t put anything in, then you are going to be screwed, because then you can’t make a decision, and essentially if you don’t agree, you have no recourse but to go to court…
STEVE: That’s awesome, that very helpful. Now, selling a company, what does somebody need to know, how do they prepare, what… so Marc I come to you, say Marc, we’ve got this… April and I had this weird idea, we are going to sell our company…
MARC: Okay, so first thing I ask is, how much are you going to sell it for? Then I say, where did you come up with that number? Because, what’s going to happen is you need someone objective who knows what they are doing, to look at your books and say, this would merit a price increase of x or a price of y, to sell the business, all things been equal. Now there’s always certain things that are out of the box, that you have this unique packing system, that there is a big craze for? That hey, that has the value that you are buying the business for, for that, as opposed to the business, as a business-operating-bringing-cash. So, actually the first thing I do is, I tell people, when you formed the business, think about what your succession plan is, going forward, what’s your ultimate goal with this business, do you want to be a 100? Do you want to sell it out to somebody else? Do you want to give it to your kid? Because based on that you need to prep, I usually prefer, when people want to go sell their business, start prepping, a year to two years in advance, because as we know with a lot of the trades and restaurants, cash flows through, cash doesn’t always get recorded on the tax, right or wrong, we all know it happens, cash is king. Well if a lot of your cash is king, then you can be very hard to ask for a price on your business, because people look at your numbers and say, why do you want this? Well, I take $40,000 of cash in a year, well, okay, do you want me to believe that, I tell you one horrible story, one restaurant here in Venice, the individual who sold the restaurant was putting money in for fake sales, paying the sales tax on it, so the number looked higher for the buyers. And the buyers bought it and paid more because they thought the sales were higher than they actually were…
STEVE: Oh no. That’s bad
MARC: Yeah… So, that’s why you do your prep, you do your work, so you can be prepared to show, this is why I deserve what I am asking for…
STEVE: Okay, NDA; how important is NDA, what is an NDA?
MARC: So, an NDA is a Non-Disclosure Agreement, it’s different from a Non-Compete, which is different from a Non-Solicit, people use these terms interchangeably and they are not. One, Non-Compete, the person who works for you cannot work in the same field at a certain period of time, doing what you do, Non-Compete. Non-Solicit, whoever leaves you cannot come back and go after your clients.
STEVE: Interesting, so that one is not very popular or common?
MARC: No, not common and then Non-Disclosure means you cannot disclose any information you obtain for any reason, except for the purpose you’ve received it, this is used often when people are looking into buying or selling a business, you sign a Non-Disclosure, hey, let’s see the financial so we don’t use it, etcetera. But you can also use it, if you don’t have the proprietorial system, such as a DYB coaching for example and someone is interested in the coaching program, you want them to sign this Non-Disclosure because if they decide not to buy in, and they have gotten some information, you don’t want them going and taking it elsewhere. So that’s a Non-Disclosure, and so you can do an agreement that has all three, but sometimes you don’t need all three, I have had somebody say listen, if somebody comes work for me, I don’t care if he works in a set of shops next door, I just don’t want him to go after my clients, Non-Solicit, fine, Non-Compete, I don’t care if he works for another company, I don’t care if he dissolves the company up, I don’t care, I just don’t want him to go after my clients, that’s a Non-Solicit, so it depends on what you want, what are you concerned about? then you know, get that.
STEVE: Awesome. Very good, so as we wrap this up, Marc, this has been awesome, is there a question I should have asked or another point or comment that you would like to share with me?
MARC: Yes, two of them actually. One is that, if you are going to form a business entity, 95% of the time, an LLC is the way to go, so picture your state change and talk to somebody, but it’s going to give you more flexibility if you need it for what you want to do, because you can always choose to be treated like a corporation with an LLC, but you can use its flexibility for elsewhere. Two, if you do want to use an attorney, every attorney who is licensed to practice in the state you are in, has to have passed the bar and your local bar has a list of every attorney, so if someone says they are an attorney, or you are looking at an attorney, you can go to your local bar, in this case it is floridabar.gov, you can look up the person, it will tell you how long they have been practicing, if they are licensed to practice in that jurisdiction and it will show disciplinary history, if any. So, anytime somebody says, I am an attorney… look them up on Florida bar or the bar or maybe they were dis-barred and maybe they are retired, I can’t tell you when we looked through sometimes, and I hate to say this but… look through the disciplinary hearings for fun sometime, seeing what people are doing… and a lot of times, what it is, is people are practicing without license because they have been dis-barred and they still continue to take people’s money to quote and do work, they are not licensed anymore, so always go to your local bar, check out say, is this guy licensed? Is there a disciplinary history? What is his story? How long have they been working? And CPA is by the way the same thing, if they have a CPA designation, go check with the state, state has information for CPAs.
STEVE: Okay, fantastic, very good. Anything else we should have asked or you like to share?
MARC: Yes, last thing, sorry…
STEVE: No, it’s good…
MARC: License is an insurance, a lot of times, when you use a sub, they are going to ask… you are going to want to make sure they have an insurance, a certain type. Always understand that the first step is asking for a certificate of insurance and don’t let them give it to you, make sure it comes from the insurance agency who has their policy. People take it and modify it and play around with it, and you can’t trust it if it doesn’t come from the insurance agency.
STEVE: So, the certificate must come from the insurance agency?
MARC: Should come from the insurance agency and you have them send you the certs…
STEVE: Become listed…
MARC: Yeah, so list the person… so the agency says, here it is, here is the person, it’s valid. Now, again, could they have cancelled that insurance? Yes, they could have, afterwards, but at least it’s not fraudulent, it’s legitimate and a lot of time people don’t realize what it is, so they don’t even know how to give it, but that’s why this part two is have that written agreement, because if you get that insurance and you have agreement say they will keep your insurance and they violate it, now, A, potentially your insurance may say, screw you, but B, you now have them on hook of being in the wrong.
STEVE: Okay, fantastic, if there could be one more things that you would have shared, what would it have been?
MARC: The last thing I am going to say is, in general rule we all want to believe the good in people, so, we give people chances, we do things sometimes without as much structure, because we don’t think of the negatives and I want people to understand that the reason you go to an attorney or somebody is if something goes wrong, yes it may go bad, go well, nothing ever needs to be done, and that’s great, I hope so, but if it does and things happen, this is what you are trying to protect. So, as much as I like kelvin, the person I am sharing my office with and it might be compartments, our agreements in writing, as much as I like people or certain things, the agreement is in writing, it clarifies the expectations and just in case something happens… what happens if someone gets Alzheimer’s… this person will never betray me, no, now they got sick, now they have Alzheimer or something, now they are doing something that they wouldn’t have done, but they are, so now what? Didn’t expect that? Too bad.
STEVE: So, written agreement is not, I don’t trust you, written agreement is clarifying expectations…
MARC: And giving yourself a chance to avoid, when something unfortunate happens.
STEVE: Okay, very good, that is awesome. So, Marc, I am going to share your contact information here in just a moment for those who would like to reach out to you…
MARC: Okay
STEVE: But first, how about some fun questions, because…
MARC: Sure…
STEVE: Alright, you are a dangerous, not just legally but physically and have a black belt in…
MARC: …Taekwondo
STEVE: How many countries have you lived in?
MARC: Lived in? 1, 2, 3, 4, 5…
STEVE: Five, how many languages do you speak?
MARC: How well do I speak them… I have studied six different languages…
STEVE: Six different languages, which is the most difficult?
MARC: German was the most difficult for me…
STEVE: German, interesting… okay, and food. You are a food kind of… I have been trying to encourage you to start like a food blog…
MARC: I know and I have been starting and I have…
STEVE: You will be the ultimate ABA for Venice, Florida as far as food blogs, I mean like, anytime we have a question about food, I just call Marc, food this, food that… what are some of your favorite dishes or types or styles of food?
MARC: Sushi…
STEVE: Okay
MARC: Duck…
STEVE: What’s the strangest thing you have ever tried with all the different countries you have lived in?
MARC: The strangest thing was probably eating a fish that’s still living and breathing as you pull the flesh off the bone.
STEVE: Okay, that good… that’s awesome. So, what countries? Germany, Japan?
MARC: No, Demark, Switzerland, Japan, South Korea, United States.
STEVE: Awesome, fantastic… Marc, it has been great to have you on…
MARC: Thank you Steve…
STEVE: For those who have been listening, more to value, we have tons of take away here and looking forward to hearing feedback from this episode, it has been very, very helpful, for those who like to follow up with you, how can they best reach you?
MARC: Email is the best way to go, my email should be… I think marcmileslaw.com, that’s the best way, because I am running around, I am not always in the office and stuff…
STEVE: So, I have that here, and that’s mmiles@marcmileslaw.com
MARC: Yes, awesome
STEVE: Fantastic. Marc, thank you so much my friend.
MARC: No problem, my pleasure Steve, anytime, take care…