The standard “corporation” format used by businesses to protect personal assets and minimize personal liability can also include other types of business entities, including S-Corporations and Limited Liability Companies (“LLC”). The corporation is America’s most popular and oldest form of business entity. However, with the tax advantages of Limited Liability Companies and S-Corporations, other types of business entities are quickly becoming more popular.
An LLC combines the limited liability shield traditionally associated with corporations, the structural and financial flexibility of partnerships, and the tax benefits of “pass-through” taxation. As a pass-through entity, the LLC pays no income tax. Instead, items of taxable income, gain, loss, and deduction pass through the LLC to its owners, and are reported by them on their separate income tax returns. Similar to the corporation, an LLC is recognized as a separate legal entity from its “members.” Thus, an LLC can own property and commit itself to contractual obligations.
IRS Treatment of the One-Member LLC
An LLC with only one member/owner is automatically considered to be a sole proprietorship unless an election is made to be treated as a corporation via IRS Form 8832. Thus, the sole member of an LLC will file Form 1040 (U.S. Individual Income Tax Return), and will include Form 1040, SCHEDULE C (Profit or Loss from Business) with his/her tax returns.
Regardless of how many members the LLC has, the LLC may file an Election to be Treated as a Corporation for Purposes of Taxation (IRS Form 8832). If an election is made to be treated as a corporation, the LLC must file Form 1120 (U.S. Corporation Income Tax Return).
IRS Treatment of the Multiple-Member LLC
If your LLC has two or more owners, it will automatically be considered a partnership unless an election is made to be treated as a corporation as described above. A partnership that has not elected to be taxed as a corporation will file Form 1065 (U.S. Partnership Return of Income). Where an election is made to be treated as a corporation, Form 1120 (U.S. Corporation Income Tax Return) is filed.
In most cases, only the LLC is responsible for the company’s debts thus shielding its members from personal liability. However, there are some exceptions where individual members may be held liable. Where an LLC member has personally guaranteed the obligations of the LLC, he or she will be liable. For example, where an LLC is relatively new and has no credit history, a prospective landlord about to lease office space to the LLC will most likely require a personal guarantee from the LLC members before executing such a lease.
To take advantage of all potential tax benefits, and if your accountant agrees, Form an LLC online today. Come tax time next year, you’ll be glad you did!
The term “C-Corporation” merely refers to a standard, general-for-profit, state-formed corporation. A Corporation is taxed as a separate entity under the tax laws. Income earned by a corporation is normally taxed at the corporate level, and the corporation must file a Form 1120 each year to report this income.
After the corporate income tax is paid on the business income, any distributions made to stockholders are taxed again at the stockholders’ tax rates as dividends. Because of these two levels of tax, a regular corporation may be a less desirable form of business than the other business entities (sole proprietorships, partnerships, limited liability companies, or S-Corporations).
Comparison with Partnerships or Sole Proprietorships:
Because the taxation of income to sole proprietorships and partnerships is determined by the tax bracket that applies to each individual owner, a comparison of tax rates that apply to corporations and to individuals can give you some idea of which form of business would save taxes at a particular income level.
Tax-related characteristics of the “C-Corporation” include the following:
- Separate Legal and Tax Life: A corporation which is properly formed and operated as a corporation assumes a separate legal and tax life distinct from its shareholders. A corporation pays taxes at its corporate income tax rates and files its corporate tax forms each year. A corporation files an IRS Form 1120.
- Avoiding Double Taxation: Generally, the corporation is taxed for its own profits; then, any profits paid out in the form of dividends are taxed again to the recipient as dividend income at the individual shareholder’s tax rate. However, most small corporations rarely pay dividends. Rather, owner-employees are paid salaries and fringe benefits that are deductible to the corporation. The result is that only the employee-owners end up paying any income taxes on this business income and double taxation rarely occurs.
S-Corporations Another alternative is to make an “S-Corporation Election.” When choosing a corporate form, as discussed above, it is important to be aware that the profits of a C-Corporation are subject to double taxation, and therefore earnings are taxed twice, once at the corporate level, and again when profits are distributed as dividends to the shareholders. However, a corporation meeting certain requirements (set by the IRS) may file for Subchapter S Corporate status (aka “S-Corporation Election”). This corporate election allows owners of an S-Corporation to elect to be taxed only at the personal level, thus avoiding tax at the corporate level.
An S-Corporation begins its existence the same way that a “C-Corporation” (discussed above) begins its existence – as a general, for-profit corporation upon filing the Articles of Incorporation at the state level. However, after the corporation has been formed, it may elect “S Corporation Status” by submitting IRS form 2553 to the Internal Revenue Service (in some cases a state filing is required as well).
Once this filing is complete, the corporation is taxed like a partnership or sole proprietorship rather than as a separate entity. Thus, the income is “passed-through” to the shareholders for purposes of computing tax liability. Therefore, a shareholder’s individual tax returns will report the income or loss generated by an S-Corporation.
Qualifying for S-Corporation Status
To qualify as an S-Corporation, a corporation must timely file IRS Form 2553 with the IRS. To take effect for the current tax year, the S-Corporation Election must be made by March 15 of the current year if the corporation is a calendar-year taxpayer. However, a “new” corporation may make the filing at anytime during its tax year so long as the filing is made no later than 75 days after the corporation has begun conducting business as a corporation, acquired assets, or issued stock to shareholders (whichever is earlier).
To qualify for S-Corporation status, the corporation must:
- Be filed as a U.S. corporation (i.e. filed with any “state” office within the U.S.).
- 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.
Failure to observe ANY of the above requirements could revoke S-Corporation status at any time. An S-Corporation that loses its status as such may not re-elect S-Corporation status for a minimum of five years.
Who Should Elect S-Corporation Status?
Owners who want the limited liability of a corporation and the “pass-through” tax-treatment of a partnership will often make the S-Corporation election. In most cases, corporations that would benefit from S-Corporation status are those who plan to distribute the majority of earnings to its shareholders in the year those earnings are derived. Corporations who plan on retaining earnings for future investments in future tax years often choose the C-Corporation because under the S-Corporation, earnings will be taxed as if they were distributed to shareholders regardless of whether a distribution actually occurred or whether the corporation retained the earnings for future investment.
As stated above, an S-Corporation is a tax designation only. This type of corporation is typically for smaller companies. It provides the benefits of incorporation, while eliminating double taxation.
The above-mentioned tax benefits may or may not apply to you. In particular, some of the benefits described apply only to C-Corporations, whereas others apply only to S-Corporations. For this reason, it is important to consult your accountant or attorney about your particular situation. If, based on your current financial composition, he/she advises you to incorporate or form an LLC, visit mycorporation.com today.
Please consult an accountant or CPA who knows and understands the details of your business, as well as the federal and local tax rules, so that you can make the best decision regarding which form of business entity (C-Corporation, S-Corporation, or LLC) will suit your needs.
A tax calculator may be a great way for you to assess the type of entity and tax benefits associated with incorporating or forming an LLC.
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