ATTORNEY HOLDING LL.M. MASTER OF LAWS TAXATION & CPA.
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ATTORNEY HOLDING LL.M. MASTER OF LAWS TAXATION & CPA.
Signed in as:
filler@godaddy.com
S-Corporations are pass-through entities with corporate income, losses, deductions, and credits through to their shareholders for federal tax purposes. However, not every corporation can elect S-Corporation status. There are certain eligibility requirements, which have to be maintained not only at inception to keep S status. The biggest ones are domestic corporation that has no more than 100 shareholders, and allowable shareholders may not be partnerships, corporations or non-resident alien shareholders.
In order to become an S corporation, the corporation must submit Form 2553, Election by a Small Business Corporation signed by all the shareholders.
The window for timely filing is:
There are some S-Corporations specific rules that have to be followed, and here are some of them:
Distributions, generally, have to be proportionate to shareholder's ownership interests. For example, in 50/50 ownership scenario, each shareholder's distribution must be 50% of the total distribution. In other words, one can't take more than the other, otherwise, distributions may need to be equalized. This is something that is different for partnerships where partners enjoy better flexibility with distributions and beyond.
Also, with S-Corporations, generally, shareholders are required to compute stock and debt basis. There are nuanced debt restoration rules that shareholders must follow. It can get complex quickly where shareholders are planning to inject funds into the S-Corporation not sure best approach to go about capital contribution v. shareholder loan. Typically, capital contribution could be better, however, there are situations where shareholder loan is better to inject in and then take it out. It is case-by-case.
In addition, with Accumulated Adjustment Account (AAA) reporting, distributions cannot make AAA go below zero or cannot increase negative balance.
Finally, reasonable compensation can be at issue. For example, if it is a service corporation, let's say a law firm, where shareholders earn revenue by providing professional services to clients, and their S-Corporation reports no compensation to lawyers, rather, they take distributions out, it could be a problem. Technically, they are taking tax-free distributions, assuming no basis limitations without paying payroll taxes. The IRS has the authority to reclassify payments made to shareholders from non-wage distributions. If this is to happen, there is a great chance that interest and penalties may be accessed.
LLC taxed as S-Corp vs. LLS taxed as Partnership
1. Managing member of LLC taxed as partnership pays self-employment (SE) tax on K-1 income while shareholders at S-Corp do not.
2. Assets in corporation can be taken out as a sale, asset taken from partnership are treated tax free under the general rule.
3. Recourse loans (guaranteed by member) are a part of the basis so more losses can be deducted. This concept is not recognized in S-Corp. As long as there is a note showing loan from corporation, it is then a part of the basis
C-Corporation vs. S-Corporation
1. Limitations on non-resident status and number of shareholders.
2. S-Corp may be limited in employee benefits: can’t have Sec 125 cafeteria plan or group term life insurance.
3. C-Corp pays income tax +Florida income tax + 15% on dividends if take money out. It is double taxation, not the case with S-Corps. Companies that have goodwill or appreciated capital assets like real estate might not want to be C-Corp because when they sell—big gains could be subject to double taxation.
4. Shareholder’s health insurance is deductible on C-Corp Books. Some C-Corps have medical reimbursement plan (makes sense if shareholders are the only employees). On S-Corp medical reimbursements are generally taxable to employees (not on C-Corp).
Our attorney can assist with evaluating and optimizing your options.
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