Delaware has a reputation as the United States’ corporate haven for good reason. More than 1.9 million business entities have made their legal home in Delaware, including over 68% of Fortune 500 companies. And the reason is clear: this small state is a heavyweight in corporate law. Delaware’s advanced and flexible business laws, specialized Court of Chancery, and attractive tax advantages make it an appealing choice for many businesses—as does its business environment, which often supports management. Understanding why and how Delaware has become such a magnet for corporations can be a valuable strategic insight for any business.

But the decision to incorporate in Delaware isn’t one that should be made lightly. Deciding where to incorporate your business can have significant implications for your company’s taxes, legal rights, and obligations—as well as its appeal to investors. Choosing whether to incorporate in Delaware means examining the specific benefits and potential challenges Delaware offers and aligning them with your business’s needs and goals.

Below is a guide to the key considerations for businesses that are deciding whether to incorporate in Delaware.

What’s in this article?

• Why do so many companies incorporate in Delaware?
  
• Benefits of incorporating in Delaware
  
• Challenges associated with incorporating in Delaware
  

Why do so many companies incorporate in Delaware?

Incorporating in Delaware offers several advantages. Here are a few of the primary reasons companies choose to incorporate in Delaware:

Favorable business law

Delaware’s General Corporation Law is one of the most up-to-date and flexible corporation statutes in the United States. It was written to support the needs of corporations, and it is continuously updated to serve that purpose. One of the key aspects of this law is that it favors the rights of management and directors, providing them with substantial flexibility in managing the affairs of the corporation. This is advantageous for companies because it offers leadership more control over the corporation’s direction and provides a greater level of protection to the decision-making processes. This can be particularly beneficial in the event of a lawsuit or other legal proceedings, as Delaware law often protects management from liability in ways that other states do not.

Court of Chancery

This unique court system is another feature that makes Delaware an attractive state for incorporation. The Delaware Court of Chancery hears only those cases relating to corporate law, making the judges in this court experts in this field. Unlike many other courts, the Court of Chancery doesn’t use juries; judges make all decisions, which can lead to more predictable and consistent outcomes. This court is highly respected for its speed and efficiency, which allows corporations to resolve disputes quickly and easily, and continue with their business operations. Moreover, the substantial and well-developed body of case law from this court provides clear guidance to corporations on a wide range of issues.

Privacy

Delaware offers more privacy for corporations than many other states do, which can be a significant advantage. In Delaware, businesses are not required to list the names of directors and officers in the articles of incorporation. This offers a level of anonymity for those individuals and allows them to conduct business without worrying that their personal information will become public record. This level of privacy can also serve as a protective measure against potential legal actions, as it can make it more difficult for third parties to obtain information about a corporation’s internal structure and leadership.

Tax advantages

Delaware’s tax laws are structured in a way that offers several benefits to corporations. If a business is formed in Delaware but doesn’t conduct business within the state, it isn’t required to pay state corporate income tax. This can result in significant savings for companies, particularly for those with high revenue. However, businesses should bear in mind that companies are required to pay a franchise tax.

Additionally, Delaware does not impose personal income tax on nonresidents. For companies with out-of-state employees or directors, this is another attractive benefit.

Investor comfort

Many investors have a preference—and sometimes a requirement—for startups they support to incorporate in Delaware. This is due to the state’s well-established corporate laws and business-friendly environment. Incorporating in Delaware can make it easier for companies to attract investment, as investors are often more comfortable investing in a Delaware corporation due to their familiarity with and confidence in its legal system.

Flexibility

Delaware corporate laws allow for business structures that provide distinct advantages. In Delaware, a single individual can hold all offices in a corporation. This means one person can be the president, secretary, treasurer, and sole director. This simplifies the management structure and allows for a high degree of flexibility, particularly for small businesses.

Benefits of incorporating in Delaware

Incorporating a business in Delaware comes with a variety of benefits that make it an attractive choice for many companies, especially larger corporations or those that want to raise venture capital funding. Here are some of the main benefits:

• Sophisticated and flexible corporate laws
  Delaware’s General Corporation Law is one of the most comprehensive and flexible corporate statutes in the United States. The state legislature updates the laws regularly to reflect the changing needs of modern businesses, ensuring that the state remains a favorable environment for corporations. The laws provide flexibility for companies to manage their affairs as they see fit, while offering strong protections to directors and officers. This encourages business innovation while maintaining a high level of corporate governance.

• Specialized corporate court system
  Delaware has a unique Court of Chancery that handles only corporate law disputes. This court uses judges—not juries—for decisions, and these judges are experts in corporate law. Typically, this system provides faster and more predictable results than in other states, which can save corporations time and money. The Court of Chancery has developed a substantial body of case law over the years, which helps provide legal certainty for corporations.

• Corporate privacy
  Delaware offers a significant level of corporate privacy. For instance, when you file your business’s annual report, you do not have to name directors or officers. This provides a level of anonymity that is not available in many other states. In addition, Delaware’s laws protect the personal information of stockholders.

• Tax advantages
  Delaware provides several tax benefits. For example, if a corporation operates outside of Delaware, it does not need to pay Delaware corporate income tax. There’s also no personal income tax for nonresidents, and there’s no sales tax. Additionally, there is no value-added tax (VAT), no use tax, no inventory tax, and no capital shares or stock transfer taxes.

• Investor preference
  Many institutional investors prefer, or even require, companies to incorporate in Delaware due to the state’s well-established laws and corporate court system. For startups that are trying to raise venture capital, incorporating in Delaware can make it easier to attract investors.

• Ease of incorporation and corporate maintenance
  Delaware has made the process of incorporating relatively simple, and the state’s Division of Corporations is known for its efficiency. Furthermore, Delaware allows for single-person corporations, in which one person can be the sole director and hold all officer positions.

• Corporate governance
  Delaware’s corporate statutes and case law provide comprehensive guidance on matters of corporate governance, offering clarity to managers and directors on a range of corporate issues. This extensive framework ensures that corporations have a clear understanding of their responsibilities and the standards they need to uphold.

• Predominance of corporate attorneys
  Given Delaware’s popularity for incorporations, there is a large pool of attorneys who specialize in Delaware corporate law. This means that companies incorporated in Delaware will be able to easily find experienced legal counsel.

Challenges associated with incorporating in Delaware

While incorporating in Delaware offers several major benefits, businesses may also face potential challenges. Here are some of them:

• Registered agent requirement
  Every company that incorporates in Delaware must have a registered agent with a physical address in the state. This means that if your business isn’t physically located in Delaware, you’ll need to hire a registered agent service, which incurs an additional cost.

• Dual compliance
  If your company is incorporated in Delaware but operates in another state, you may have to comply with the laws and regulations of both states. You might be considered a “foreign” entity operating in your own state and be required to qualify or register as a foreign entity, which usually involves additional fees and paperwork.

• Franchise tax
  All corporations in Delaware are subject to an annual franchise tax, even if they don’t do business in the state. The amount varies depending on the type and size of the corporation. Some businesses might find the costs associated with the franchise tax higher than in other states.

• Increased legal costs
  The complexity of Delaware’s corporate laws, while beneficial in many respects, may also result in higher legal costs. For example, if disputes arise, they’ll be settled in Delaware courts, which might involve hiring attorneys familiar with Delaware law.

• Annual reports
  Delaware requires corporations to file an annual report. The report and the associated fees are due by March 1 of each year. This process can be complex and time-consuming for businesses, especially those not located in Delaware.

• Limited benefits for small businesses
  While Delaware’s business laws are known for their benefits to large corporations, small businesses may not reap the same advantages. For instance, small businesses are less likely to benefit from the sophisticated case laws of the Delaware Court of Chancery if they are unlikely to be involved in complex legal disputes. Also, if a small business doesn’t plan to attract venture capital or go public, they may not benefit from Delaware’s investor-friendly laws.

Before choosing to register in Delaware, it’s important to consider your business’s unique needs and balance the advantages with the potential hurdles. Consider speaking with a legal professional to ensure that incorporating in Delaware aligns with your company’s best interests.