Doing Business as a Consultant
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Doing Business as a Consultant. Michael K. Barron, Esq. DLA Piper: Who We Are. Global Practices, Local Resources We provide an extensive range of legal services through seven global practice groups: Commercial Corporate and Finance Real Estate Legislative and Regulatory Litigation

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Doing Business as a Consultant

Michael K. Barron, Esq.


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DLA Piper: Who We Are

  • Global Practices, Local Resources

    • We provide an extensive range of legal services through seven global practice groups:

      • Commercial

      • Corporate and Finance

      • Real Estate

      • Legislative and Regulatory

      • Litigation

      • Human Resources

      • Technology, Media and Communications

    • We counsel our clients on a full range of legal issues, assisting with the challenges that businesses face as they develop strategies and deliver plans.

    • Our lawyers are locally trained and fully conversant with the cultural and business practices of all our jurisdictions.

Doing Business as a Consultant


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Global Office Locations

  • A global organization

    • 66 offices in 28 countries

    • 3,700 lawyers

    • Over 1,500 lawyers on each side of the Atlantic

  • Additional coverage via DLA Group Firms, an alliance of legal practices, Focus Firms, and DLA Piper affiliate firms

Doing Business as a Consultant


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United States Office Locations

Doing Business as a Consultant


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US Market Presence

  • One of the 10 largest law firms in the US

    • 1,500 attorneys

    • National coverage in major US business centers

  • Leading national corporate practice

    • 275+ corporate/securities attorneys

    • 250+ finance/franchise attorneys

    • Ranked among the top IPO, M&A, and venture finance firms in the country

    • Corporate counsel to more than 120 public companies

  • National reputation in intellectual property

  • Leading litigation practice

    • Securities, intellectual property, product liability, commercial

    • 550 attorneys

  • High profile government affairs and regulatory practice

Doing Business as a Consultant


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Services for Digital Media Clients

  • We advise our clients on:

    • distribution and licensing agreements and the risks and liabilities afforded by copyright in these agreements

    • competition law issues, particularly where platforms and their owners merge

    • the value of content rights and liabilities during the merger and acquisition or disposal process

    • data protection and freedom of information and the particular legal risks encountered where information crosses borders and media

    • the protection and enforcement of IP in the context of digital platforms, particularly in respect of the patentability of databases

    • avoiding disputes, copyright infringement tribunal proceedings and piracy cases

    • finance agreements and revenue splits where consumers access content through new channels

    • cross-jurisdictional libel and privacy liabilities where content is transmitted across channels and legal and regulatory borders

Doing Business as a Consultant


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Advertising, Trade and Promotion

  • Advertising Copy

  • Comparative Advertising

  • E-Commerce

  • International

  • Internet

  • Litigation and Dispute Resolution

  • Marketing Agreements

  • Packaging and Product

  • Rebates and Coupons

  • Sweepstakes and Contest Promotions

  • Trade Practices

Doing Business as a Consultant


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More than 140 lawyers representing young companies and VCs in the US

We provide the following services to our clients:

Access to domestic and foreign funding sources

Business growth and exit strategy planning

Intellectual property development, exploitation and protection

Innovative business arrangements, including strategic partnerships and alliances

Counsel on day-to-day matters (tax, M&A, executive compensation, and regulatory)

Follow-on round syndication help

We offer comprehensive legal counsel, which includes our services in the following areas:

Domestic and International Tax

Mergers and Acquisitions

Employee Benefits and Executive Compensation

Technology and Sourcing

Regulatory Affairs

Emerging Growth & Venture Capital

Doing Business as a Consultant


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DLA Venture Pipeline in the US

  • Dedicated team of non-lawyers experienced in technology, start-ups and the venture capital markets

  • Focused solely on helping our emerging growth clients raise and invest venture capital

  • Formalized approach to helping entrepreneurs raise capital

  • Trusted deal source for venture firms

  • Leverage global platform to provide emerging growth companies world class service

Doing Business as a Consultant


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Getting Started: in the US

  • Should I form a company?

  • If so, what type of company?

  • What steps do I need to take to form a company?

Doing Business as a Consultant


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Getting Started: in the US

  • Should I form a company?

    • Not necessarily. A consultant can operate as a sole proprietorship. But, what are the risks?

  • Can insurance cover the risks?

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Massachusetts Limited Liability Entities: in the US

  • C corporation

  • S corporation

  • Limited liability company

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How to Choose Which Type of Entity is Right for You… in the US

Some criteria to consider:

  • Limited liability

  • Availability of pass-through tax treatment

  • Ease of formation

  • Cost of operation

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Setting up a C Corporation in the US

Formed by completing and filing Articles of Organization with the Massachusetts Corporations Division

Minimum filing fee to incorporate in Massachusetts is $275.00

Annual Report Fee is $125.00 (due March 15th)

Other Required Documents:

  • Bylaws

  • Incorporator’s Consent

  • Initial Director’s Consent

    Obtain Federal Employer Identification Number by completing and filing IRS Form SS-4

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Setting up a S Corporation in the US

Formed by completing and filing Articles of Organization with the Massachusetts Corporations Division

Minimum filing fee to incorporate in Massachusetts is $275.00

Annual Report Fee is $125.00 (due March 15th)

Other Required Documents:

  • Bylaws

  • Incorporator’s Consent

  • Initial Director’s Consent

    Must file IRS Form 2553 to elect S corporation status

    Obtain Federal Employer Identification Number by completing and filing IRS Form SS-4

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Setting up a Sole Proprietorship in the US

No forms need to be filed with the Massachusetts Corporations Division

No annual reports need to be filed with the Massachusetts Corporations Division

No need to obtain an IRS Employer Identification Number. All tax filings will be under your Social Security Number

However, if conducting your sole proprietorship under an assumed name (known as a d/b/a), Chapter 110, Section 5 of Massachusetts General Laws requires you to file a Business Certificate (D/B/A) with the city or town where your business is being conducted. City of Boston charges a filing fee of $50.00 for a Business Certificate, and the Business Certificate must be renewed every four (4) years

Doing Business as a Consultant


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Setting up a Limited Liability Company in the US

Formed by completing and filing a Certificate of Organization with the Massachusetts Corporations Division

Formation fee is $500.00

Annual Report fee is $500.00

Other Documents:

Operating Agreement

Obtain Federal Employer Identification Number by completing and filing IRS Form SS-4

Doing Business as a Consultant


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Taxation of a C Corporation in the US

No pass through tax treatment for a C Corporation. Income is taxed to the corporation. The tax rate will be 35% of taxable income if the C Corporation is deemed a qualified personal services corporation.

The Massachusetts corporate excise tax is calculated by adding two different measures of tax: a net income measure, and either a property measure or a net worth measure, depending on whether the corporation is a tangible or an intangible property corporation. The income measure is calculated at a rate of 9.5 percent of the corporation’s taxable net income apportioned to the Commonwealth. The property/net worth measure is imposed at a rate of $2.60 per $1,000 of either a corporation’s taxable Massachusetts tangible property or its taxable net worth.

Doing Business as a Consultant


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Taxation of a S Corporation in the US

Federal Tax Treatment

Pass-through tax treatment.

Massachusetts Tax Treatment

Pass-through tax treatment, except as follows:

S corporations with total receipts of $6 million or more are liable for the income measure of the corporate excise at the following rates:

  • 3 percent on net income subject to tax if total receipts are $6 million or more, but less than $9 million; or

  • 4.5 percent on net income subject to tax if total receipts are $9 million or more.

    All S corporations owe a minimum corporate tax of $456 regardless of profitability.

Doing Business as a Consultant


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Taxation of a Limited Liability Company in the US

Federal Tax Treatment

Pass-through tax treatment (if so elected by taxpayer).

Massachusetts Tax Treatment

Massachusetts treats limited liability companies for tax purposes in the same manner as they are treated for federal income tax purposes.

Doing Business as a Consultant


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Employee vs. Independent Contractor in the US

Federal and Massachusetts law governs whether you are providing services to an entity as either an employee or as an independent contractor.

The Internal Revenue Service formerly used a twenty factor test to determine whether a worker is an employee or an independent contractor. The twenty factor test has been recently consolidated by the IRS into eleven main tests, organized into three main groups:

  • Behavioral Control

  • Financial Control

  • Type of Relationship of the Parties

    Massachusetts uses a three part test which is more stringent than the federal test. The three part Massachusetts test is as follows:

  • The individual has been and will continue to be free from control and direction in connection with the performance of the services under his/her contract.

  • The service is performed outside the usual course of business of the employer.

  • The individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as the service performed.

Doing Business as a Consultant


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Biography in the US

Michael K. Barron focuses his practice on representing early and later stage biotechnology, medical device, healthcare, software, internet and technology companies and investors in such companies. He counsels clients on corporate formation, corporate transactional and intellectual property matters and has particular experience working with clients on early stage financings (angel, venture and strategic), mergers and acquisitions, licensing (software, technology, and biotech), and trademark matters.

Mr. Barron has served as the legal advisor for numerous common stock and preferred stock private placements for early stage companies. He handled private placements of a biotech company’s common stock, which netted gross proceeds for the company of over $200 million. Mr. Barron has also represented numerous clients in the sale of their businesses, including the recent sale of an internet focused marketing company to a Fortune 50 company.

In 1995, Mr. Barron founded the Massachusetts Innovation & Technology Exchange (MITX), a trade association which serves more than 6,000 New England professionals involved in internet and digital technologies. Mr. Barron currently serves as the General Counsel of MITX and on its Executive Committee.

Doing Business as a Consultant


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Michael K. Barron in the USPartnerDLA Piper LLP (US)33 Arch Street, 26th FloorBoston, Massachusetts 02110T (617) 406-6006 F (617) 406-6106 [email protected]


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