Designing a sustainable firm is something that requires intentionality. For most advisors, this is always the goal, but having time to monitor your progress and course-correct is simply overwhelming. It gets shelved in the back of our brains, and its not until something unexpected crops up when we realize its time to revisit our goals.
In my work, I’ve become a “professional traveler,” so I spend a lot of time in airports, and I get to talk to many of the pilots. Airline pilots are adventurous souls who enjoy finding ways to go faster, fly higher, and see things from a level that others cannot. They are also very methodical and go about everything with a checklist mentality, a clear purpose, and as much knowledge on the subject matter as they can muster. I find a lot of our entrepreneurial advisors to be cut from the same cloth. The goal of building something bigger, stronger, and better, helping clients with a different view of the financial world, and then sharing what they’ve built with others is woven into the very fabric of their being. Entrepreneurs like to grow, and they like to do things right.
Growth, of course, can mean many things. You might want to grow your top line revenue and assets under management. Maybe you’re looking to hire and build your team in order to improve client experiences. Perhaps you want to acquire a practice–or two–to quickly grow revenue, assets, the client base, and your own income. But, just like a pilot who wants to go faster and fly higher, eventually you’re going to need a larger plane, a stronger engine and airframe, even additional skills that maybe you don’t have–or don’t necessarily have a passion for developing.
Over time, we’ve seen that independent advisors don’t naturally build large, profitable, sustainable businesses. The ambition is there, and recurring, fee-based revenue certainly helps, but the skill-sets that prompt most of you to hang out your own shingle and start gathering clients who entrust you with their financial goals and assets are different than what it takes to run an organization of professionals and create scale. For these reasons and others, this is still more an industry of book builders than it is of business builders.
When one person’s misstep in using a common industry practice gets reported in the press or a blog, a reader may worry if he or she has also strayed. Some have this response to the recent Tax Court case Fleischer v. Commissioner. The many differing opinions and commentaries on that case have advisors asking how this ruling affects their existing entity structures and tax reporting.
Many of the articles on Fleischer either oversimplify the court’s ruling, misinterpret the court’s decision to suggest an advisor with a business entity (either a corporation or a limited liability company) must abandon the entity, or miss the point entirely. The danger in those messages is their failure to understand the details of the Fleischer case, and not emphasizing that in the proper execution of an integrated plan – one that accommodates corporate law, tax law, and FINRA regulations – there would have been a different outcome.
From the Fleischer case, understand this: You won’t have a problem if you do things right. But setting up an entity in a highly regulated industry and operating it correctly is intricate. You cannot do it on LegalZoom or with an attorney or accountant unfamiliar with FINRA regulations. The Fleischer decision does not change the fact that entities are worthwhile for a wide variety of reasons.
The Fleischer Case
In the Fleischer case, the court focused on who controls the earning of the income, citing the two-part test recognized in the 1982 case of Johnson v. Commissioner. In that case, Charles Johnson played for the NBA’s San Francisco (now Golden State) Warriors in the 1970’s. He formed a Panamanian corporation to receive his income from the team. Citing additional precedent, the Johnson court held that the corporation did not meaningfully control Mr. Johnson’s services as a basketball player, nor did the Warriors have notice that its player was contractually affiliated with the entity. For those reasons, passing the player’s salary through the foreign corporation did not shelter Mr. Johnson from employment tax. The Johnson court stated two tests, both of which must be met:
Unfortunately, as businesses evolve from single advisor, single book to a more established entity they tend to move into a structure that leads to value that is attached to individual client books within a business rather than to the business itself. This is because, as practices grow and add more advisors, they are onboarded using revenue splitting agreements keeping the books siloed. And, as Brad Says, “If your books are siloed, you’re not a firm – you’re essentially just roommates sharing paper.”
The key to avoiding this is to set up an organizational structure that is an actual business unit instead of just an accounting conduit.
Our new webcast explores different ensembles, and how an improper organizational structure can be dangerous for the ongoing growth and value of your business. We’ll also discuss structures that will ensure your value is tied to your business as a whole and will promote the longevity and sustainability of your firm.