Owners or members, as they are usually called, of an LLC have the choice to elect how the LLC will be treated for tax purposes. This is a fairly new option allowed by the tax regualtions. In the past, the Internal Revenue Service (IRS) classified business entities as either partnerships or corporations based on four different factors.
The four factors included: limited liability, centralized management, continuity of life and free transferability of interest. However, this "four factor" approach led to a lot of confusion and uncertainty for business owners.
Then in 1997, new IRS regulations came into effect which allowed business entities like LLCs to elect the tax treatment they desired. These regulations became known as the "check-the-box" regulations. They can be found in Income Tax Regulations 301.7701-1 through 301.7701-3. Details about making the election are set forth in the IRS instructions to Form 8832.
The change in the law provides several different options to entities such as an LLC. It will allow a business operated as an LLC to enjoy all of the beneficial characteristics of a corporation but still be taxed as partnership or, in the alternative, it provides for an LLC to elect corporation tax status and then make the S corporation election.
In summary, partnership taxation provides for the income and deductions to flow through or "pass through" to the partners who then report and pay income tax on their individual tax returns. Partnership taxation is the basic method of taxation for most LLCs and S corporations. On the other hand, if an entity is classified as a corporation, then income taxes will generally have to be paid by the corporation on income that it earns and then later when that income is paid to the shareholders in the form of dividends, they will have to pay tax at their personal level. This results in double taxation and needs to be avoided where possible.
The partnership form of taxation avoids this double tax and is one of the main reasons why it is beneficial to most small businesses. LLCs by default receive partnership taxation. This means if the owners do not make an election by filing Form 8832 to be taxed as something different than a partnership the LLC and its members will automatically be subject to partnership taxation principles. A corporation which makes the S election is also subject to the basic partnership taxation principles with a few exceptions. In other words, standard LLCs and S corporations are both treated similarly, with a few exceptions, based upon partnership taxation principles.
Most tax professionals I work with suggest that a business owner can reduce (not eliminate) the FICA or 15.3% self employment tax by forming a corporation and making the S election. However, this reduction in FICA taxes is not available in most cases to the members of an LLC. So a business person can form an LLC and then make the election to be taxed as a corporation by filing IRS Form 8832 and then make the S election by filing IRS Form 2553. By doing this, the LLC can operate with the less formal structure and rules associated with corporations but also obtain reduced FICA tax treatment for the members.
Since both the S corporation and the LLC provide limited liability protection to the shareholders or members, an LLC which elects tax treatment similar to the S corporation, may be an attractive option to discuss with your accountant or tax advisor. Not only can you operate the LLC under less stringent requirements than the corporate form, you still get limited liability protection, basic partnership taxation, with a few exceptions, the chance to reduce FICA taxes for the members of the LLC and operation of the LLC under less formal rules than with corporations.
S Corporation Tax Filing
The popularity of Subchapter S corporations shouldn't really surprise people, however. S corporations provide two big tax savings to small business owners. First, they typically don't pay federal or state corporate income taxes.
And, second, S corporations often minimize the payroll taxes that S corporation shareholder-employees pay because only amounts the corporation designates as wages get taxed for Social Security and Medicare tax purposes. Unfortunately, S corporation owners make some common tax blunders--blunders that can destroy or delay the tax savings the S corporation option should deliver.
Blunder 1: Late Sub S Elections
The first blunder? Thinking you can make the S election at the end of the year. An S election needs to be made early in the year or before the year even starts in order to be effective for the year. Specifically, you should make the S election either before the year starts or within 75 days after the start of the new year.
For a business whose tax year begins on January 1, the election needs to be made by March 15. If a new business begins life mid-year on, say, May 23, the 75-day counter starts ticking down from that date.
Note: The IRS does provide a mulligan for people who miss the election deadline. Taking this mulligan, however, requires that you strictly follow some "late S election relief" procedures. Accordingly, you probably want to get a CPA's help with this.
When you make a successful S election, the Internal Revenue Service sends your business an approval letter. That letter uses scary--almost threatening language--warning you to pay reasonable compensation to shareholder-employees.
Despite the warning, S corporations commonly forget to do the formal payroll thing--including regular payroll checks and tax deposits, quarterly payroll tax returns, and year-end W-2s. That's often a huge mistake.
If you don't do payroll, the IRS will catch up with you. At that point, the IRS will re-categorize all of the shareholder-employee draws as wages. This re-categorization may trigger thousands of dollars of back taxes, penalties and interest for each year and for each shareholder-employee for whom you forgot to do payroll.
Accordingly, you got to do payroll. Period.
Blunder 3: Bad Borrowing Habits
Ironically, your bank often helps you make another common S corporation tax blunder: The bank will loan you money to buy some piece of equipment--or perhaps a business vehicle.
But the bank often lends its money directly to your S corporation. As crazy as it sounds, the bank should loan the money to you personally and then you should loan the money to the S corp.
An awkward problem exists when a business loan gets used to fund an S corporation purchase. You get to write off your purchase only when you have at least that much basis in the S corporation. Yet you get basis only from money you've personally invested or loaned to the S corp.
You don't get basis from a loan made to your S corporation for, say, a new delivery vehicle purchased for the business. Without basis, you often won't be able to deduct the purchase on your tax return.
This S corporation tax mistake gets made all the time--often when S corporation owners are making last minute, year-end asset purchases to drive down their income.
Fortunately, you can solve the problem pretty easily. Make sure you directly borrow the money for asset purchases and then do a back-to-back loan to your corporation.
This back-to-back loan shouldn't increase your risks. You'll probably have to personally guarantee the loan anyway, right?
Blunder 4: Triggering the BIG Tax
Typically, S corporations don't pay federal income taxes. That's a huge part of the attraction. A couple of common exceptions to this general rule exist for S corporations that started life as regular C corporations.
The first exception? The "built-in gain" or BIG tax. It applies to profits recognized by the S corporation but stemming from the time when the corporation operated as a C corporation.
The details of the BIG tax get really tedious. But logic is really simple. If you would have paid tax on some income or gain had you still been a regular C corporation and that income or gain was already "locked in" at the point you converted from a C corporation to an S corporation, the old C corporation tax (35% of profits) still applies.
The moral: You need to be really careful if you convert to S corp status after operating as a C corporation. Make sure your accountant understands and helps you minimize the BIG tax.
Blunder 5: Passive Income Excesses
Another tax blunder threatens S corporations previously operated as C corporations, too.
If an S corporation profitably operated as a C corporation and has retained some of those profits, passive income (interest, rents, dividends and so forth) gets taxed when it exceeds 25% of gross receipts.
This "too much passive income" problem may sound only theoretical. But it occurs regularly with old S corporations being wound down by the owners--say for retirement.
If an S corporation that used to be a C corporation metamorphoses from an operating company to an investment company, at some point, the S corporation may pay corporate income taxes.
If that isn't bad enough, yet another problem exists with turning an S corporation that used to be a C corporation into an investment holding company. If the passive income crosses over the 25% threshold for three years in a row, the S corporation status terminates.
Because of the taxes on excessive passive income and the risk of losing S status, avoid or minimize passive income within an S corporation that previously operated as a C corporation. One easy way to do this is to distribute profits to shareholders rather than reinvest them.
Both Robert Montgomery & Stephen Nelson are contributors for EditorialToday. The above articles have been edited for relevancy and timeliness. All write-ups, reviews, tips and guides published by EditorialToday.com and its partners or affiliates are for informational purposes only. They should not be used for any legal or any other type of advice. We do not endorse any author, contributor, writer or article posted by our team.
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