In Part 1 of this Series, we discussed the various options for structuring a social enterprise. This week we turn to one of the unique issues impacting non-profit organizations who try to raise money by starting a social enterprise--unrelated business income. As a non-profit (and for this blog post, we're going to focus on 501(c)(3) organizations), how do you start a social enterprise without jeopardizing your charitable status and without incurring unexpected tax liabilities?
Nonprofits must be organized and operated exclusively for religious, educational, scientific or other charitable purposes. The general rule for business revenue earned by a nonprofit is that the revenue must be related to the organization’s charitable purpose. Otherwise, the revenue is treated as unrelated business taxable income (“UBTI”). The IRS requires nonprofits to pay tax on UBTI when engaged in commercial business activities in order to prevent tax-exempt organizations from having an unfair advantage over for-profit, taxable competitors.
We’ve talked before about why it’s so important to know the difference between an employee and an independent contractor (and the penalties for getting this wrong). But as I was deciding what this week’s blog post should be, I realized…we didn’t really discuss what is the difference between an employee and an independent contractor? As year-end approaches and you start making strategic plans for next year, it’s critical that you know how to make this determination.
The IRS considers a worker an independent contractor “if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.” If you think about it, this makes sense. An independent contractor must be “independent.” If you are telling a worker what to do, when to do it, where to do it, and how to do it, they’re not an independent contractor. They’re an employee. Even if the worker has some level of discretion (as most professionals do in this day and age), the key is whether or not you as the employer have the legal right to control what is being done and how it’s being done. In other words, are you paying the worker to accomplish a result, or are you paying the worker to perform a list of duties and responsibilities)?
Are you paying the worker to accomplish a result or to perform a list of duties and responsibilities?
Of course, like most things in the practice of law, it’s never as simple as results vs details. The IRS is cracking down on misclassification, and with the growth of the so-called gig economy, some states are even passing legislation to treat more workers as employees. The ultimate answer to the question “what’s the difference between an employee and an independent contractor” is it depends on the specific facts in your situation. How’s that for a lawyer answer?
In Part 1, we discussed the importance of conducting a trademark search, preferably before investing too much into a brand only to learn that your trademark cannot be registered or, worse, infringes someone else's trademark. The most common reason for the U.S. Patent and Trademark Office (USPTO) to refuse a trademark registration is because there is a "likelihood of confusion" between the mark you applied for and an already registered mark. Put simply, in order to protect consumers, two trademarks generally cannot be "confusingly similar" to one another.
The question isn't whether your trademark is identical to someone else's. The question is how similar the two trademarks in question are and whether both marks are being used for related goods and services. For example, you wouldn't be able to trademark "McDonald's Burger Joint" for obvious reasons, but you could make a good argument to trademark "McDonald's Financial Services" because burgers and financial services are not related goods or services.
Contracts are everywhere in business. From online click-through agreements to the service contracts you use with your clients and customers, contracts are simply part of doing business in the modern world. And in this day and age where information is quite literally at our fingertips and just a Google search away, it’s all too easy to throw an agreement together or borrow a sample from an internet website.
But contracts are like the rules to a game. A game of Uno will almost certainly end in a fight if half the players aren’t aware of the unwritten “house rules,” if sections of the rule book are missing, or if the rules say one thing but the drafter meant something completely different. The rules need to be clear and unambiguous from the start, and they need to address as many “what-ifs” as possible.
Here are 5 red flags to watch for before signing any business contract.