Willcox, Buyck & Williams, PA Blog

Wednesday, August 19, 2015

Commercial Real Estate

Negotiating a Commercial Lease? Be Sure to Address These Issues

When it comes time for your business to move into a new commercial space, make sure you consider the terms of your lease agreement from both business and legal perspectives.  While there are some common terms and clauses in many commercial leases, many landlords and property managers incorporate complicated and sometimes unusual terms and conditions.   As you review your commercial lease, pay special attention to the following issues which can greatly affect your legal rights and obligations.

The Lease Commencement Date
Commercial leases typically will provide a rent commencement date, which may be the same as the lease commencement date. Or not. If the landlord is performing improvements to ready the space for your arrival, a specific date for the commencement of rent payments could become a problem if that date arrives and you do not yet have possession of the premises because the landlord’s contractors are still working in your space. Nobody wants to be on the hook for rent payments for a space that cannot yet be occupied. A better approach is to avoid including in the lease a specific date for commencement, and instead state that the commencement date will be the date the landlord actually delivers possession of the premises to you. Alternatively, you can negotiate a provision that triggers penalties for the landlord or additional benefits for you, should the property not be available to you on the rent commencement date.

Lease Renewals
Your initial lease term will likely be a period of three to five years, or perhaps longer. Locking in long terms benefits the landlord, but can be off-putting for a tenant. Instead, you may be able to negotiate a shorter initial term, with the option to extend at a later date.  This will afford you the right, but not the obligation to continue with the lease for an additional period of years.   Be sure that any notice required to terminate the lease or exercise your option to extend at the end of the initial lease term is clear and not subject to an unfavorable interpretation.

Subletting and Assignment
If you are locked into a long-term lease, you will likely want to preserve some flexibility in the event you outgrow the space or need to vacate the premises for other reasons. An assignment transfers all rights and responsibilities to the new tenant, whereas a sublease leaves you, the original tenant, ultimately responsible for the payments due under the original lease agreement. Tenants generally want to negotiate the right to assign the lease to another business, while landlords typically prefer a provision allowing for a sublease agreement.

Subordination and Non-disturbance Rights
What if the landlord fails to comply with the terms of the lease? If a lender forecloses on your landlord, your commercial lease agreement could be at risk because the landlord’s mortgage agreement can supersede your lease. If the property you are negotiating to rent is subject to claims that will be superior to your lease agreement, consider negotiating a “nondisturbance agreement” stating that if a superior rights holder forecloses the property, your lease agreement will be recognized and honored as long as you fulfill your obligations according to the lease.


Tuesday, August 18, 2015

The Best Lawyers in America

Congratulations to Mark W. Buyck, Jr. and Mark W. Buyck, III for once again being selected by their peers for inclusion in The Best Lawyers in America 2016.  Mark W. Buyck, Jr. was selected in the fields Personal Injury Litigation and Mark W. Buyck, III was selected in the areas of Employment and Labor Law.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Over 79,000 leading attorneys globally are eligible to vote, and we have received more than 12 million votes to date on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers "the most respected referral list of attorneys in practice."


Friday, August 14, 2015

Congress Considering Bill to Simplify Mergers & Acquisitions Process

What are the latest advancements on federal corporate laws as relating to mergers and acquisitions? 

For many small businesses, the option of merging with another business – or acquiring it altogether – can be an attractive and lucrative way to increase productivity, grow jobs, and ultimately increase profits. Oftentimes, businesses considering this maneuver will enlist the services of a professional advisor or business broker to help set up the deal and seamlessly transition the companies involved. 

Unbeknownst to many, these consultants are heavily regulated by the Securities and Exchange Commission (SEC), which oversees any merger or acquisition involving the “purchase/sale, exchange, or issuance or stock or debt, or a merger or business combination transaction.”  The compliance costs for these brokers are substantial, reaching almost $150,000 annually – which is, of necessity, passed on as part of the final cost of the merger or acquisition. For many small and micro businesses, these compliance costs preclude the involvement of a broker or consultant, resulting in potential pitfalls as they attempt to expand.

Fortunately, Congress has introduced a new piece of legislation known as the Small Business Mergers, Acquisitions, Sales and Brokerage Simplification Act. Under this Act, brokers and consultants would be exempt from the regulatory oversight requirements if the proposed merger/acquisition involves businesses with annual earnings of less than $25 million and/or gross revenues of less than $250 million. In addition, the exemption would only be available in situations in which the buyer intends to maintain control and ownership of the business after purchase. 

The sponsors of the bill hope that these changes will allow smaller businesses the opportunity to work with experienced professionals during the merger and acquisition process, thereby allowing businesses the opportunity to avoid any mistakes along the way. Moreover, the change would help effectuate the estimated $10 trillion worth of private companies that will be sold or transferred as the Baby Boomer generation retires. 

If you are considering a merger or acquisition and would like to discuss the best ways to accomplish your business goals, contact the South Carolina attorneys at Willcox, Byuck & Williams, P.A. today! Please call: (843) 461-3020 in Myrtle Beach or (843) 536-8050 in Florence. 


Wednesday, August 12, 2015

Careful what you post on social media

Don’t Let Your Social Networking Activities Undermine Your Divorce Negotiations

According to the American Academy of Matrimonial Lawyers, in the past five years 81% of its members have represented clients in cases involving evidence from social networking sites, such as Facebook, MySpace, Twitter, YouTube and LinkedIn. Posted pictures and comments can make the job all-too-easy for your former spouse’s attorney to attack your credibility and ensure you do not receive the relief that you are requesting from the court.

A picture is worth a thousand words. And that picture you posted of yourself, in various stages of undress, or with a marijuana cigarette in one hand and a drink in the other, speaks volumes to the court and can result in unfavorable rulings regarding child custody or visitation. But the information posted doesn’t even have to be tawdry or illegal to land you in trouble. What about the ex-husband who claims he has no income, but his Facebook profile is chock-full of photos of luxury purchases or exotic vacations? What about the parent who posts profanity-laden status updates, insulting the judge’s competence? Should it find its way into the court, none of this information is going to help your case.

All of these communications can be considered by the court in making its rulings. Nothing you post online is 100% private, regardless of your privacy settings. Opposing attorneys can always subpoena the records, share your dirty secrets with the court, impeach your credibility, and obtain a favorable ruling for their client – your ex-spouse.

The lasting implications of a negative court ruling can far outweigh the momentary, fleeting satisfaction of venting your frustration at the judge or your ex, or sharing “fun” photos on your Facebook profile. The bottom line is that you have to think before you post. It has often been said that you should not publish anything that you wouldn’t want your Mother to see. A similar standard should be applied for those going through a divorce. What if that comment you are about to make, or the photo you are about to post, were to fall into the hands of your ex-spouse’s lawyer? This can have far-reaching consequences, affecting your income and support obligations, or visitation and custody of your children.

To avoid the pitfalls of information sharing in the digital age, you must assume that anything and everything you post will be obtained by opposing counsel and find its way into the courtroom. Family law cases involve some of our most private matters and care should be taken to ensure you protect your own privacy. Preserve your attorney-client privilege by refraining from sharing any details of your relationship or conversations with your attorney. Avoid posting compromising photos, or making derogatory remarks on your social networking profiles.

Above all, do not post anything you wouldn’t want your ex, his or her attorney, or the judge to see. Regardless of how restrictive your privacy settings may be, this information can easily be subpoenaed and become a part of the court record. If there is any doubt, do not post. You cannot “unring that bell!”
 


Tuesday, August 4, 2015

Mandatory 10-Digit Dialing Coming September 19, 2015

South Carolina's new area code 854 will overlay the 843 area code region, including the coastal communities of Charleston, Hilton Head Island, Myrtle Beach, and Florence. This will require 10-digit dialing within the region.

  

You won't have to change your present telephone number. The new 854 area code will be assigned only for new telephone numbers within the area code region. The only change will be the way you dial local calls in the 843 area code region.

Effective September 19, 2015, all calls that are currently dialed with 7 digits will need to be dialed using 10 digits to be completed: area code 843 then 7-digit telephone number. The same dialing procedure will apply to telephone numbers assigned to the new 854 area code.

  • Local calling areas and rates will not be affected by this change.
  • Special services that use three-digit numbers, such as 911 and 411, as well as 1+ 10-digit "long distance, will not change.
  • Other three-digit numbers that are currently available in your community or from your provider, such as 211;311, 511, 611, 711 or 811, will not change.

 

Start early using 1.0-digit dialing so it will be second nature by the time it is required on September 19, 2015. Beginning October 19, 2015, new telephone lines or services may be assigned numbers with the new 854 area code.

 

What you should do to get ready for 10-digit dialing.

  • Make sure your websites, stationery, advertising materials and checks include your area code. Since your area code remains the same, there is no need to reprint if these items already contain your area code.
  • Update all stored local telephone numbers to include the area code for services such as call forwarding, call blocking and voicemail, and for equipment, such as wireless phones.
  • You may need to reprogram or upgrade equipment such as fax machines, dial-up modems, Internet connections, multi-line key or PBX systems, or any equipment with automatic dialing features.
  • Customers who have security systems, life safety systems, or monitored medical devices need to contact their vendor to determine reprogramming needs for 10-digit local dialing.

Monday, August 3, 2015

Which Business Structure is Right for You?

Which Business Structure is Right for You?

Which entity is best for your business depends on many factors, and the decision can have a significant impact on both profitability and asset protection afforded to its owners. Below is an overview of the most common business structures.

Sole Proprietorship
The sole proprietorship is the simplest and least regulated of all business structures. For legal and tax purposes, the sole proprietorship’s owner and the business are one and the same. The liabilities of the business are personal to the owner, and the business terminates when the owner dies. On the other hand, all of the profits are also personal to the owner and the sole owner has full control of the business.

General Partnership
A partnership consists of two or more persons who agree to share profits and losses. It is simple to establish and maintain; no formal, written document is required in order to create a partnership. If no formal agreement is signed, the partnership will be subject to state laws governing partnerships. However, to clarify the rights and responsibilities of each partner, and to be certain of the tax status of the partnership, it is important to have a written partnership agreement.

Each partner’s personal assets are at risk. Any partner may obligate the partnership, and each individual partner is liable for all of the debts of the partnership. General partners also face potential personal legal liability for the negligence of another partner.

Limited Partnership
A limited partnership is similar to a general partnership, but has two types of partners: general partners and limited partners. General partners have broad powers to obligate the partnership (as in a general partnership), and are personally liable for the debts of the partnership. If there is more than one general partner, each of them is liable for the acts of the remaining general partners. Limited partners, however, are “limited” to their contribution of capital to the business, and must not become actively involved in running the company. As with a general partnership, limited partnerships are flow-through tax entities.

Limited Liability Company (LLC)
The LLC is a hybrid type of business structure. An LLC consists of one or more owners (“members”) who actively manage the company’s business affairs. The LLC contains elements of both a traditional partnership and a corporation, offering the liability protection of a corporation, with the tax structure of a sole proprietorship (if it has only one member), or a partnership (if the LLC has two or more members). Its important to note that in certain states, single-member LLCs are not afforded limited liability protection.

Corporation
Corporations are more complex than either a sole proprietorship or partnership and are subject to more state regulations regarding their formation and operation. There are two basic types of corporations:  C-corporations and S-corporations. There are significant differences in the tax treatment of these two types of corporations, however, they are both generally organized and operated in a similar manner.

Technical formalities must be strictly observed in order to reap the benefits of corporate existence. For this reason, there is an additional burden of detailed recordkeeping. Corporate decisions must be documented in writing. Corporate meetings, both at the shareholder and director levels, must be formally documented.

Corporations limit the owners’ personal liability for company debts. Depending on your situation, there may be significant tax advantages to incorporating.



Thursday, July 30, 2015

South Carolina Judge Rules Subscription Charges ‘Count’ as Taxable Income Against Cable Conglomerate

If an out-of-state business collects subscription proceeds from a South Carolina resident, must it pay South Carolina tax on that income? 

With subscription-based services all the rage nowadays, the concept begs the question: What about taxes? Based on a recent case holding, it is clear that cable provider DirectTV had hoped to circumvent this minor detail – but was instead slapped with an $8.5 million income tax bill for failing to pay taxes on revenues from consumer subscriptions in the state of South Carolina. The case, which was decided by a state administrative judge within the Department of Revenue – hinged on the concept of “income-producing activity,” and whether the cable company actually engaged in taxable activity within the state of South Carolina. The case also serves as a glaring reminder of a foundational principle that, in life, only two things are inevitable: death and (federal and state) taxes. 

Basis of DirectTV’s claims: It never actually made money in South Carolina

DirectTV asserted throughout the course of the litigation that the monthly subscriptions maintained by South Carolina residents did not “count” as the source of its income. Rather, its income is derived from “national marketing, content development, broadcast operations and customer service — business activities that are conducted outside of South Carolina.” By that reasoning, the company shouldn’t have to pay income tax in any state outside its state of incorporation, right? 

Not really. Invoking a much more thorough level of reasoning, the administrative law judge concluded that the actual revenue-producing activity conducted by DirectTV involved its “delivery of the signal into the homes and onto the television sets of customers….[and] all of those income-producing activities related to South Carolina customers occurred entirely within South Carolina. 

Thankfully, the judge also took a moment to rebuke the respondent for its argument, stating that it was of “no practical value.” Between 2006 and 2011, DirectTV has generated over $2 billion in subscriber fees from South Carolina homes and businesses, including $136 million in revenue from cable equipment and boxes. 

If you are struggling with a state taxation issue or would like to discuss a general business matter, please do not hesitate to contact the Florence and Myrtle Beach business law attorneys at Willcox, Buyck & Williams today: 843-536-8050. 

Friday, July 10, 2015

South Carolina to Enact Laws Regulating ‘Transportation Network’ Companies

Are taxi companies like Uber regulated by the same rules as traditional taxicab operators? 

Following a crushing blow to its business model in California, transportation network company Uber is facing yet another legislative response to the way it handles its company and employees under South Carolina law. As the 21st state to take notice of Uber’s less-than-compliant business tactics, Governor Nikki Haley recently signed into law a bill designed to ensure that issues connected to the company in other states do not occur in the Palmetto State. More specifically, the law regulates ‘transportation network companies’ in terms of licensing, driver background checks, and vehicle safety inspections. 

Nonetheless, Governor Haley is reportedly pleased to have the company in the state of South Carolina, and urged the General Assembly to compile the bill as quickly as possible, stating that “Uber’s expansion into our state is a win for innovation, the competitive business environment we have fought so hard to create, and it means our citizens will continue to have safe reliable transportation options….”

Basics of South Carolina’s transportation network bill

Conducting its business largely unchecked, Uber – and companies like it – will now be required to obtain permits from the state’s Office of Regulatory Staff – which is responsible for enforcing specific corporate regulations required across several industries. 

In addition, the bill requires drivers to undergo criminal background checks before accepting fares within the state – a move prompted by several nationwide reports of sexual assaults and unsavory conduct by drivers against their passengers. Moreover, a transportation network driver in South Carolina cannot have any record of drunk driving or driving under the influence of drugs – and must inform his or her vehicle lienholder if the vehicle will be used to transport fares. 

Lastly, the bill ensures that all vehicles are safe and properly inspected under South Carolina standards. Once approved, the vehicle must prominently display its licensure and driver identification information. 

If you are considering starting a business in South Carolina, or would like to speak to a knowledgeable business law attorney in the Florence or Myrtle Beach areas, please contact Willcox, Buyck & Williams by calling (843)536-8050. 

Tuesday, June 30, 2015

What are you going to do with the extra time you have today?

Although a standard year is 365 days long, the Earth actually makes its journey around the Sun in about 365.25 days. This means that, over time, the calendar will start to get out of synch ....

 See full article here  http://http//www.gizmag.com/happy-leap-second/38027/?utm_source=Gizmag+Subscribers&utm_campaign=39adb6c4b1-UA-2235360-4&utm_medium=email&utm_term=0_65b67362bd-39adb6c4b1-91134365

 


Monday, June 29, 2015

South Carolina Passes Law Prohibiting Boycotts

What are the latest laws impacting South Carolina business owners? 


In an interesting turn of events, the South Carolina legislature passed a law in early June, 2015, prohibiting the state from entering into a contractual relationship with any business actively engaged in certain types of boycotts. The legislation is unique in that it works to deter or dissuade small businesses from engaging in discriminatory conduct, even when such conduct is less obvious or overt to the general public. 

Under the provisions of Section 11-35-5300 of the South Carolina code, the term “boycott” is used to refer to a business decision rendered by a corporation that involves “blacklisting” or divesting from a certain person or corporate entity for a specific reason. Under the new law, South Carolina public entities and agencies are prohibited from entering into a contract with any private sector entity that actively decides to boycott another business or person based on that entity’s race, color, religion, gender, or national origin. 

For many small businesses, choosing not to work with a certain individual or entity is a natural component of the free trade experience. For these reasons, the legislature added to the bill the caveat that the term “boycott” is not defined to include any decision based solely on economic factors or the specific conduct of a member or director of an entity. Likewise, the bill contains an exception to the boycott rule when a divesture is applied against “a public entity of a foreign state when the boycott is applied in a nondiscriminatory manner.”

As a South Carolina business owner, it is important to understand the pivotal distinction between a lawful boycott, and one that could cost your business lucrative government contract revenue. Keep in mind that your board is well within its rights to make a calculated economic decision not to work with a certain entity or individual, provided the decision is not based on any discriminatory motive whatsoever. 

If you are concerned with corporate compliance and would like to speak with a reputable Florence and Myrtle Beach business  and corporate law attorney, please contact Willcox, Buyck & Williams by calling (843)461-3020 right away.  

Thursday, June 25, 2015

Quarterly CEO Breakfast allows for community discussion.

A special thanks goes out to everyone who attended the Chamber's quarterly CEO Breakfast this morning, sponsored by Willcox, Buyck & Williams, P.A. It's always fantastic to be able to get a group of the area's business, government and community leaders around one table to discuss what's taking place in our community, where current projects are headed and how we can all work together for the betterment of Florence.

 https://www.facebook.com/florencechamber/photos/a.342372315813095.105046.241496762567318/993199614063692/?type=1&theater

 


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| Phone: 843.536.8050
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