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John Malone, JD, CTC
February 16, 2024

Is Delaware the Best Choice for Business Incorporation?

When starting a new business, one of the first decisions you'll face is determining which state to incorporate in. While Delaware is often touted as the go-to choice for its tax and corporate laws, it may not be the best option for every business. In this article, we'll explore why incorporating in Delaware may not always be the most advantageous strategy for achieving tax-free wealth. We'll delve into the reasons why businesses should consider incorporating in their home state instead, and highlight the potential drawbacks of choosing Delaware as your business's legal home.

Understanding Delaware's Corporate Appeal

Delaware's popularity as a corporate haven stems from its reputation for business-friendly laws and a well-established legal framework. Many startups and businesses are drawn to Delaware because of its extensive body of corporate law, including the renowned Court of Chancery, which specializes in resolving business disputes. Additionally, Delaware offers significant tax advantages for corporations, such as no state corporate income tax on goods or services sold outside of Delaware.

Reasons Not to Incorporate in Delaware - Tax Strategist’s Perspective 

1. Limited Access to Venture Capital Funding

Venture capitalists often prefer investing in Delaware C corporations due to their familiarity with Delaware's corporate laws. However, the reality is that the majority of businesses never secure venture capital funding. According to, only about 0.06% of businesses receive venture capital financing. Therefore, if your business falls into this category, incorporating in Delaware solely for the purpose of attracting venture capital may not be a wise decision.

2. Location Matters: Incorporate in Your Home State

If your business operates primarily in a state other than Delaware, it may be more advantageous to incorporate in your home state. Incorporating outside of your business's physical location can create additional complexities and costs. You may need to appoint a registered agent in Delaware, pay taxes in both Delaware and your home state, and comply with annual reporting requirements in both jurisdictions. Incorporating in your home state simplifies these processes and ensures compliance with local laws.

3. Legal Jurisdiction and Potential Litigation

By incorporating in Delaware, you consent to the jurisdiction of Delaware courts. This means that if legal disputes arise, they may be litigated in Delaware, even if your business is located far away. This can result in significant costs associated with hiring Delaware-licensed attorneys and traveling to attend court proceedings. Choosing to incorporate in your home state can help mitigate the potential burden of litigating in a distant jurisdiction.

4. Compliance for Web-Based Businesses

Even if your business operates solely online, you are still subject to state laws and registration requirements. If you generate revenue from within the United States, you must register your business in your home state. Incorporating in Delaware does not exempt you from these obligations. It's important to recognize that physical presence is not the sole determining factor for tax and legal compliance.

Incorporating in Your Home State for Tax-Free Wealth

For many businesses, incorporating in their home state is the most practical and efficient choice. Here are some compelling reasons to consider incorporating locally:

1. Tax Benefits and Incentives

Many states offer tax incentives and benefits to encourage business growth. By incorporating in your home state, you can take advantage of these opportunities, which may include tax credits, exemptions, and incentives specific to your industry. Consulting with a tax strategist or CPA can help you identify the most tax-friendly options available in your state.

2. Familiarity with Local Laws and Regulations

Operating within your home state provides familiarity with local laws and regulations. This can facilitate compliance and make it easier to navigate the legal landscape. Additionally, local laws may better align with the specific needs and requirements of your business.

3. Community Engagement and Support

Incorporating in your home state allows you to actively participate in the local business community. Building relationships with fellow entrepreneurs, accessing local resources and mentorship programs, and contributing to the economic development of your community can provide significant advantages for your business's growth.

4. Cost Savings

Incorporating in your home state can lead to cost savings by eliminating the need for a registered agent in Delaware and minimizing the complexity of compliance with multiple jurisdictions. Additionally, reducing travel expenses and legal fees associated with litigating in a distant state can contribute to overall cost savings.

Deciding on the Best Incorporation Path

While Delaware offers numerous advantages for businesses seeking a favorable legal and tax environment, it's crucial to consider whether those benefits align with your specific goals and circumstances. For many businesses, incorporating in their home state provides a more practical and cost-effective solution. By understanding the tax and legal implications of incorporating in Delaware versus your home state, you can make an informed decision that maximizes your chances of achieving tax-free wealth. Remember to consult with legal and tax professionals to ensure compliance with all relevant laws and regulations in your chosen jurisdiction.

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