With the S-Corporation Deadline Quickly Approaching…Should I Consider filing for S-Corporation Status?

This year’s deadline for electing S-Corporation status is approaching fast -  March 15, 2008.Now’s the time to consider whether your corporation should elect “S-Corporation” status. Let’s First Start off with Explaining What an S-Corporation is….An S-Corporation begins its existence as a general, for-profit corporation upon the filing of Articles of Incorporation at the appropriate state office. Once formed, a general for-profit corporation that has not requested “S-Corporation Status” with the IRS will be required to pay income tax on taxable income generated by the corporation. In addition, any dividends distributed to shareholders may be subject to taxation as dividend income to that shareholder as well (hence the problem of “double taxation” that can occur in a ‘Non-S-Corporation’). However, after the corporation has been formed, it may elect “S-Corporation Status” by timely submitting IRS form 2553 to the Internal Revenue Service. Certain states require that your corporation file state-specific forms to qualify for S-Corporation status in that state for state taxation purposes. In addition, S-Corporation status is not available for purposes of state tax liability in certain states. Please contact your state’s taxing authority for further information.Once this filing is complete, the S-Corporation is taxed in a manner similar to a sole proprietorship or partnership, rather than as a separate entity. Thus, the income is “passed-through” to the shareholders for purposes of computing tax liability. Therefore, each shareholder’s individual tax return will report the income or loss generated by the S-Corporation.

Who typically elects S-Corporation status?Most entrepreneurs prefer the S-Corporation structure for the following reasons: ·          The S-Corporation combines many of the advantages of the sole proprietorship, the partnership, the corporation, and the LLC into one entity.·          Unlike sole proprietors and partners in a partnership, shareholders of an S-Corporation are afforded the same level of limited liability and personal asset protection as are the shareholders of a general, for-profit corporation.·          In an S-Corporation, shareholders avoid the “double-taxation” common to shareholders of non-S-Corporations because all income or loss in an S-Corporation is reported only one time on the personal income tax returns of the S-Corporation’s shareholders. Where a corporation claims income from a passive investment (e.g. from real estate owned) for three consecutive years that exceeds 25% of the corporation’s gross receipts, S-Corporation status may be terminated by the IRS. Most real estate investors, for example, prefer placing real property in an LLC (Limited Liability Company) rather than an S-Corporation for this very reason.Are There any Requirements to Qualify as an S-Corporation that I should know about?  To qualify for S-Corporation status, the corporation must ·          Be filed as a U.S. corporation. ·          Maintain only one class of stock. ·          Maintain a maximum of 100 shareholders. ·          Be comprised SOLELY of shareholders who are individuals, estates or certain qualified trusts, who consent in writing to the S-Corporation election. ·          NOT have a shareholder who is a non-resident alien. Please note that failure to observe ANY of the above requirements could revoke S-Corporation status at any time.

That Sounds Great but what are the differences between an S Corporation and an LLC?While on the surface the S-Corporation and the Limited Liability Company (“LLC”) may seem similar, but please note the following very significant distinctions. The following are some of the differences between the two types of corporate entities: ·          S-Corporations are limited to 100 shareholders, while LLCs have no limit to the number of members.·          S-Corporation shareholders must ALL be individuals who are U.S. citizens or permanent resident aliens. LLC members (owners) may be individuals, corporations, partnerships, many trusts, and even non-resident aliens. Are there any Tax Advantages to forming an S-Corporation?In an S-Corporation, only earnings actually paid out to an owner as compensation for services are subject to payroll taxes. Any money left in the business for reinvestment or distributed to the shareholder as a dividend is not subject to payroll taxes…and not subject to self-employment tax. Let’s review an example: “John” operates his business as an unincorporated, sole proprietorship. John has a net income (gross income less expenses) of $60,000 during the year. During the course of the year, John withdraws $40,000 as his personal salary leaving the remaining $20,000 in the business. If John operates as a sole proprietorship, he’ll owe self-employment tax on the full $60,000 (($60,000 x 15.3% = $9,180). However, if John forms a corporation, elects S-corporation status, and withdraws the same $40,000 as compensation for his services, he would only owe self-employment taxes on the $40,000 in salary ($40,000 x 15.3% = $6,120). Thus, forming an S-Corporation would save John $3,060 in payroll/self-employment taxes.  The “S-Corporation” Deadline:To qualify as an “S-Corporation” for the 2007 tax year, a “calendar year” corporation must timely file IRS Form 2553 with the IRS.If a corporation was in existence in 2006 or earlier, then this filing must be submitted to the IRS on or before:

 

March 15, 2008


If the corporation is a “New Corporation” (formed on or after 1/1/2008), then the S-Corporation election may be submitted at anytime during its tax year so long as the filing is made no later than 75 days after the corporation has begun any of the following activities (whichever is earliest):
·                                                         Conducted business as a corporation ·                                                         Acquired assets, or ·                                                         Issued stock to shareholders  TAKE ACTION NOW!
If you decide that an S-Corporation is the right way to go for your company, let MyCorporation prepare your S-Corporation application (Form 2553) for your filing with the Internal Revenue Service to elect S-Corporation status.  If MyCorporation has already formed your corporation and you asked us to prepare the S-Corporation election form, then check your final package.   MyCorporation only PREPARES IRS Form 2553.   All shareholders must sign this form and YOU must submit this form to the IRS in a timely fashion.   For existing corporations, the form must be submitted to the IRS by March 15th.    In the case of a new corporation, you must submit this form within 75 days of when your corporation first acquires assets, begins conducting business or issues shares to its shareholders. 
 How Else Can MyCorporation Help You? ·          Prepare IRS Form 2553 (S-Corporation Election) for an EXISTING Corporation. ·          Form a NEW Corporation (General for Profit and S-Corporation options will be available for your selection) ·          Form an LLC ·          Learn More about Corporations and LLCs ·          Download Tax Publications and Information (Instructions, Minutes, Tax Returns, etc…) ·          S Corp Instructions ·          S Corp Tax Return 1120S (Tax Form) ·          S Corp Tax Return 1120S (Instructions) ·          Schedule K-1, Shareholder’s share of Income, credits, deductions (Tax Form) ·          Schedule K-1, Shareholder’s share of Income, credits, deductions (Instructions)
Important Disclaimer:  As with any important legal matter, we strongly urge you to contact a licensed professional before making any decisions that could impact your tax liability. Please see your accountant or financial advisor for advice as to whether your corporation will qualify for S-Corporation status.

About Deborah Sweeney

is the CEO of MyCorporation.com. MyCorporation is a leader in online legal filing services for entrepreneurs and businesses, providing start-up bundles that include corporation and LLC formation, registered agent, DBA, and trademark & copyright filing services. MyCorporation does all the work, making the business formation and maintenance quick and painless, so business owners can focus on what they do best.

3 thoughts on “With the S-Corporation Deadline Quickly Approaching…Should I Consider filing for S-Corporation Status?

  1. Great information! Another thing that is important to note about the S Corp as compared to the LLC – the LLC has dramatically fewer formalities required. With the S Corp you must follow the same state formalities as does a C-corporation (i.e. filing Articles of Incorporation and paying state fees). This also means holding meetings, taking minutes, giving notices, etc.

  2. One BIG disadvantage of an S Corporation which I found out the hard way: an S Corporation is not legally required to help shareholders pay corporate tax on money the corporation retains (i.e., shareholder is required to pay taxes on money they’ve never received) – which is quite completely insane! Since there is no law as per se, shareholder must file lawsuit to get corporation to pay for taxes on money it retained. More than likely, court will rule in favor of shareholder as corporation not disbursing funds to pay for tax on retained earnings will likely be construed as “oppressive conduct”, but making this happen requires non-reimbursable time and money for shareholder to effectuate. So unless you really trust your majority shareholder business partner, like I did, you better get a shareholder’s agreement with “air-tight” S Corporation tax payment clauses put in place well before you go “live”. -jk

  3. The article says “S-Corporation shareholders must ALL be individuals who are U.S. citizens or permanent resident aliens.”

    Tax Laws does nto have any word like “Permanent Resident Alien” It uses Resident Alien and Non Resident Alien and ANY Resident Alien can be shareholder of S Corp.
    In fact a foreigner who satisfy Substantial Presence Test can also be a Shareholder since he/she is a Resident Alien (but not a Legal Permanent Alien)