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Starting and Operating a Business in the U.S. Chapter 2: Choosing the Legal Form of the Business General Considerations
By Michael D. Jenkins
Starting and Operating a Business in the U.S.
Chapter 2: Choosing the Legal Form of the Business
A business venture can generally be structured into one of three legal forms -- a sole proprietorship, partnership, or corporation. There are also variations on these basic legal forms, such as the S corporation and the limited partnership. The limited liability company (LLC), a relatively new form of business organization, has gained legal status in all 50 states and the District of Columbia.
When deciding your business' legal form, consider the following questions:
- Will someone else share in ownership of the business? If so, it will not be a sole proprietorship. You must choose between a partnership arrangement, a corporation, or possibly an LLC.
- How important is limiting personal liability for debts or claims against the business? If this is a major consideration, incorporating the business is generally the best means of limiting your liability.
- Which form of business organization will result in the least taxes? While there is no universal answer to this question, the rest of this chapter explains when it is and isn't beneficial to incorporate for tax reasons.
Tax Election on Form 8832< /B>
Since new IRS regulations went into effect on January 1, 1997, the task of achieving the desired type of tax treatment of an entity, where you wish to avoid treatment as a corporation -- has been greatly simplified, and you get to choose how your unincorporated business entity, such as a limited liability company, will be taxed -- as a corporation or not. The new IRS "check-the-box" regulations provide new and simplified default rules for domestic companies:
- A corporation will be taxable as a corporation.
- An unincorporated entity will be taxed as a partnership or, if it has only one owner, will be disregarded for tax purposes (i.e., treated as a sole proprietorship of the owner).
Under these default classification rules, it is no longer necessary, in the case of a limited partnership or limited liability company, to meet numerous complex rules regarding centralized management, transferability of interests, and the like, in order to avoid corporate tax classification. The IRS also provides a new tax election form, Form 8832 Entity Classifica-tion Election, for certain foreign entities and for domestic entities that wish to elect tax treatment other than as provided under the default rules. In most cases, unless you wish to do something out of the ordinary, such as electing corporate tax treatment for an LLC, or changing the current tax classification of your business, it will not be necessary to make a Form 8832 election. A sample of Form 8832 is provided on p. 55.< B>
Changing the Legal Form of the Business< /B>
Before choosing the legal form of your business, you should realize you may need to change to a different form in the future. Changing legal forms is easier to do with some forms of business than with others. As a rule, it is simpler to change from a sole proprietorship to a partnership, or from a sole proprietorship or partnership to a corporation, than it is to move in the opposite direction. An LLC is usually treated like a partnership.< P>For example, converting a corporation into a sole proprietorship or partnership may result in substantial individual and corporate-level taxes when the corporation is liquidated. < P>While some expenses and complications are almost always involved in changing the legal form of a business, such changes are quite routine transactions. Many businesses start off as sole proprietorships, develop into partnerships, and later incorporate for tax or other considerations. Your choice of legal form when you first start your business need not be final.
To get a brief overview of the various legal forms of doing business, refer to the summary table on pp. 52-53, which lists the key characteristics of sole proprietorships, partnerships, corporations, and limited liability companies.
Advantages and Disadvantages of Sole Proprietorships
A sole proprietorship is one of the most common ways to organize a new start up. Many self-employed individuals, home-based businesses, and small cottage industries operate as sole proprietorships. As a sole proprietor, you are the sole owner of your business. If you are married, however, your spouse will usually have a one-half interest in the business if you live in a state that has community property laws. A sole proprietorship is an exciting, independent way to operate a business, with its own unique sets of advantages and disadvantages.
To give you a better perspective on why a sole proprietorship is a popular legal form of doing business, consider the benefits listed below. Not only is a sole proprietorship easy to start, but everyone likes the idea of receiving all the profits from the business, saving on unemployment taxes, and having more freedom to withdraw assets.< B>
Easy to Organize. The great advantage of operating a new business as a sole proprietorship is that it is simple and does not require any formal action to set it up. You can start your business today as a sole proprietorship -- there is no need to wait for an attorney to draft and file documents or for the government to approve them. Of course, you may need a business license, and a growing number of states require you to register to do business.
Profit (or Loss) Is Yours. All of the profit or loss from your business belongs to you and must be reported on your federal income tax return, Schedule C, Income (or Loss) from a Business or Profession, on Form 1040. This can either be an advantage or a disadvantage for income tax purposes, depending on the circumstances.
If operating the business results in losses or significant tax credits, you may be able to use the tax losses or tax credits to reduce taxes on income from other sources. Or, if your sole proprietorship generates modest profits -- but not more than about $75,000 to $100,000 a year -- overall taxes may be less than if incorporated, assuming you need most of the income to live on.
Unemployment Tax Savings. As a sole proprietor, you are not considered an employee of your business. As a result, you avoid paying unemployment taxes on your earnings from the business. Both the state and federal governments impose unemployment taxes on wages or salaries, but not on self-employment income. Note that a corporation would normally get an income tax deduction for the unemployment tax it paid on your salary, so that the actual after-tax savings from operating as a sole proprietorship would be somewhat less than the unemployment taxes you would avoid paying. Refer to Chapter 6, and to Section V(b) of your state chapter (on the CD-ROM), regarding federal and state unemployment taxes you must pay for each employee.
Withdraw Assets Tax-Free. Another advantage of a sole proprietorship is that you can shift funds in and out of your business account or withdraw assets from the business with few tax, legal, or other limitations. In a partnership or a limited liability company, you can generally withdraw funds only by agreement and, in the case of a corporation, a withdrawal of funds or property may be taxable as a dividend or capital gain or violate some states' corporation laws.< B>
To make an informed decision, you must always look at the downside of a situation or opportunity. A sole proprietorship has several advantages, but be sure to consider also some of its important disadvantages.
Personal Liability. As the owner of the sole proprietorship, you will be personally liable for any debts or taxes of the business or other claims, such as legal damages resulting from a lawsuit. This is one reason why many entrepreneurs prefer to use a corporation or limited liability company rather than a sole proprietorship. Unlimited personal liability is perhaps the major disadvantage of operating a business as a sole proprietorship.< B>
Limited Tax Savings for Fringe Benefits. A major disadvantage of sole proprietorships (and partnerships) is they cannot obtain a number of significant tax benefits regarding group-term life insurance benefits, long-term disability insurance coverage, and medical insurance or medical expense reimbursements. To qualify for favorable tax treatment regarding these fringe benefit plans, you need to incorporate. A self-employed individual is allowed to deduct 60% of his or her health insurance when computing adjusted gross income. Beginning January 1, 2002, the deduction rises to 70% and will increase to 100% in 2003 (although Congress is currently considering an immediate increase to 100% deductibility).
The special advantages of corporate pension and profit-sharing plans have largely been eliminated. There are now virtually no differences in the tax treatment of self-employed (Keogh) plans of sole proprietorships and partnerships, as compared with corporate retirement plans. See Chapter 12 for more on retirement plans.< B>
Advantages and Disadvantages of Partnerships< /B>
In general, any two or more individuals or entities who agree to contribute money, labor, property, or skill to a business and who agree to share in its profits, losses, and management are considered to have a partnership. You can choose to have a general partnership or a limited partnership, or in a growing number of states, a limited liability partnership in lieu of a professional corporation.
General Partnerships< /B>
Creating a general partnership can be a very simple matter since the law does not require any official written documents or other formalities for most partnerships. As a practical matter, however, it is much sounder business practice for partners to have a written agreement that, at a minimum, spells out basic issues, such as:
- How much and what kind of property each partner will contribute to the venture;
- What value will be placed on the contributed property;
- How profits and losses will be divided among the partners;
- When and how profits will be withdrawn;
- Whether or how certain partners will be compensated for their services to the partnership or for making capital available to the partnership; and< P>- How changes in ownership of interests in the partnership will be handled.
A written partnership agreement should be prepared by an attorney and, if possible, should be reviewed by a tax accountant before it is put into effect. Be advised that partnerships are easy to get into, require a lot of patience and understanding to live with, and are often costly and painful to get out of.
Some reasons a partnership can be advantageous include:< B>
Complete control over operations. As a partner, you are an agent for the partnership and can do anything necessary to operate the business, such as hire employees, borrow money, or enter into contracts on behalf of the partnership.
Flexibility in withdrawing assets. Taking money or other assets out of a partnership is slightly more complicated than with a sole proprietorship, but you have much more flexibility than in the case of a corporation, and usually no serious tax or legal consequences result from withdrawing assets out of a partnership -- provided you don't violate the terms of your partnership agreement.< B>
Favorable taxation on income for partners. Like a sole proprietor, a partner is not generally considered an employee of the partnership for income tax and payroll tax purposes. The income tax advantages and disadvantages of a sole proprietorship are equally applicable to a partnership since a partner's share of income from a partnership is treated essentially the same as income from a sole proprietorship. For example, your income from a partnership may be subject to federal self-employment tax but not to federal and state unemployment taxes.
Partnership pays no income tax. While a partnership must file federal and usually state information returns -- Form 1065 is the federal form -- it generally pays no income tax. Instead, the partnership reports each partner's share of income or loss on the information return, and each partner reports the income or loss on Schedule E of his or her individual income tax return, Form 1040. In addition, partnerships are required to file a special report, Form 8308, with the IRS each time a sale or exchange of an interest in the partnership occurs.< B>
Assistance in operations. Starting a business involves long hours and extra duties as owner/manager. If you have a trustworthy, conscientious partner by your side, you will be in a better position to have competent assistance with the day-to-day operations of running your partnership. Your chances of catching a mistake, meeting a particular deadline, or improving product quality and service will be increased. In addition, a potential partner could bring an expertise into the business that otherwise would have to be brought in by hiring an employee or outside consultant. Having a diverse partnership, with each partner using his or her strengths to improve operations, is often worthwhile in the long run.
Knowing some of the positive aspects of organizing a partnership gives you a chance to better weigh the disadvantages, such as:
Dissension among partners. While a good relationship between partners can make for a strong business team, the downside risk is that you and your partner or partners may not get along. You may, in fact, have totally different views about how the business is to be run, which can lead to dissension, acrimony, deadlock, and in some cases, dissolution of the partnership or even lawsuits.< B>
Taxable year issue. Unlike C corporations, partnerships are generally not allowed to use a fiscal year for tax purposes. Instead, they must report on a calendar-year basis. Those partnerships that are allowed to use a fiscal tax year are required to report and pay income taxes directly if the use of a fiscal year would otherwise result in a tax-deferral benefit to its partners.
Liability of partners. You and each of your partners -- except for a limited partner in a limited partnership -- have personal liability for the debts, taxes, and other claims against the partnership. If the partnership's assets are not sufficient to pay creditors, the creditors can satisfy their claims out of your personal assets. In addition, when any partner fails to pay personal debts, the partnership's business may be disrupted if his or her creditors proceed to satisfy their claims by seeking what is called a charging order against partnership assets.
No perpetual existence. Unless a partnership agreement provides otherwise, a partnership usually terminates when any partner dies or withdraws from the partnership. This is in contrast to a corporation, which theoretically, has perpetual existence. Under the laws of most states, bankruptcy of a partner or the partnership itself will cause the dissolution of the partnership, regardless of any agreement.
Limited Partnerships< /B>
In contrast to the general partnership, which has unlimited personal liability for all of its partners, the limited partnership allows investors who will not be actively involved in the partnership's operations to become partners without being exposed to unlimited liability for the business' debts.
A limited partner risks only his or her investment but must allow one or more general partners to exercise control over the business. In fact, if the limited partner becomes involved in the partnership's operations, he or she may lose his or her protected status as a limited partner. The general partners in a limited partnership are fully liable for the partnership's debts. Every limited partnership must have one or more general partners, as well as one or more limited partners. Besides enjoying all the benefits derived from limited personal liability, a limited partner's share of the partnership's income is not subject to the self-employment tax, unless he or she is receiving guaranteed payments from the partnership for services rendered in addition to a distributive share of profits or losses.4< P>State law requires certain formalities in the case of a limited partnership that are not required for other partnerships. To qualify for their special status, limited partnerships must usually file a certificate of limited partnership with the secretary of state or other state and county offices. Establishing a limited partnership also requires a written partnership agreement. See Sections II(c) and IV(c) of the state chapter (on the CD-ROM) for your state, regarding various filing requirements for partnerships under state law.
Limited Liability Partnerships
All 50 states and the District of Columbia have enacted limited liability company (LLC) laws as well as additional provisions for another new entity, the limited liability partnership (LLP). LLPs vary considerably from state to state. More information on state laws is available in Section II(c) of the state chapter on the CD-ROM at the back of this book.
In general, the LLP is simply a regular general partnership that is granted some degree of limited liability -- much like a corporation or LLC -- if it files a required form or statement with the state. In some states, they are allowed only for certain professional service firms, as an alternative to professional corporations, while in others an LLP may engage in any lawful business.
In most states, an LLP does not provide the full liability protection afforded by a corporation or LLC. Instead, most state LLP laws provide liability protection only for certain defined types of misdeeds of another partner, such as malpractice, intentional misconduct, or negligence, and do not offer any limitation of liability from general trade creditors of the partnership, in the event the LLP's business closes. Also, no liability protection is offered in any state to an individual partner for his or her own wrongdoing (such as malpractice) -- a partner is protected only from liability for acts of the other partners. Thus, an LLP should not be considered as the equivalent of a partnership or LLC with regard to limiting the liability of the owners of a business.
While LLPs have not garnered the degree of attention recently focused on LLCs, they have a number of advantages over LLCs, corporations, or other partnerships.
- Like LLCs or S corporations, LLPs have the tax advantage of flow-through tax treatment -- that is, they will generally qualify for partnership tax treatment for federal income tax purposes. In addition, most states treat LLPs as partnerships for tax purposes, which is usually advantageous. Even states that treat LLCs less favorably for tax purposes, such as California, tend to grant more favorable tax treatment to LLPs.< P>- Like LLCs, they are not subject to the numerous limitations that apply to S corporations with regard to ownership, capital structure, and division of profits.
- LLPs have the advantages of simplicity and familiarity, as compared with LLCs. In most cases, an existing partnership can simply elect to become an LLP by filing a specified form or document and paying the applicable fee. There is usually no need to draw up a new governing document, such as articles of incorporation or articles of organization, as for a corporation or LLC. The existing partnership agreement can generally continue to serve as the governing document when a regular partnership becomes an LLP.
Despite the obvious advantages of LLPs, do not be in too great a rush to set up one. Keep in mind several disadvantages of operating your business as an LLP.
- You may not actually have limited liability if you conduct business in a state like California or New York that allows LLPs only for certain kinds of professional partnerships. Creditors in any of those states would be free to go after your personal assets if the business failed.
- Even if your home state and the other states in which you do business all have LLP laws that allow your type of business to operate in LLP form, some of those state laws provide that if you do not properly register as a foreign LLP, or if you forget to make annual filings required of both domestic and foreign LLPs, your LLP status may be lost and your partnership will revert to general partnership status by operation of state law.
- Except in a few states, LLPs do not provide liability protection for the individual partner's own acts of malpractice or other wrongdoings, and do not provide any shield from ordinary trade creditors in the event the partnership business fails.
- Sole owners will not be able to establish LLPs since, as a partnership, an LLP must have at least two partners to exist.
- The self-employment tax treatment of partners in an LLP is uncertain at present. While limited partners in a limited partnership are not subject to self-employment tax on their share of the partnership income, and IRS proposed regulations would also exempt partners in LLPs and members in LLCs from self-employment taxation if several conditions are satisfied, Congress has indicated that it wants to legislate a solution to this issue, and that the proposed IRS regulations should not be made final until Congress acts.< B>
Advantages and Disadvantages of C Corporations< /B>
When you are considering which legal entity to choose for your business, you will want to carefully consider the pros and cons of the corporation. A corporation is unlike any other form of doing business because it is considered by federal and state law to be an artificial legal entity that exists separately from the people who own, manage, control, and operate it. It can make contracts and pay taxes, and it is liable for debts. Corpora-tions exist only because state statutory laws allow them to be created. Deciding whether to incorporate in your home state or elsewhere is discussed in Chapter 14.
A business corporation issues shares of its stock, as evidence of ownership, to the person or persons who contribute the money or business assets that the corporation will use to conduct its business. Thus, the stockholders or shareholders are the owners of the corporation, and they are entitled to any dividends the corporation pays and to all corporation assets -- after all creditors have been paid -- if the corporation is liquidated.
Corporations can exist in many different forms. The regular C corporation is the main focus of this section; the personal service corporation is mentioned briefly at the end of this section; and the S corporation is discussed in the next section.
Before getting into the general advantages and disadvantages of incorporating, you need to know that to set up a corporation, you must file articles of incorporation with the state office that grants and approves corporate charters. See Section II(d) of the state chapter for more information on state incorporation requirements in your state.
In addition to the requirements for establishing a corporation, there will be recurring costs, often including annual franchise or corporate income taxes. See Section IV(c) of the state chapter for information on state income and franchise taxes in your state.
Corporate Taxes< /B>
Since many of the advantages associated with incorporating involve how a corporation is taxed on its income, you need to understand corporate tax rates and how your income from the corporation is viewed by the IRS. Corporations filing their income tax returns on Form 1120-A or Form 1120 will be taxed at different rates depending on the amount of their taxable income. The following table lists the current federal corporate income tax rates, which are 39% in the highest bracket.
Taxable Income - Tax Rate
Not more than $50,000 - 15%
$50,000 to 75,000 - 25%
$75,000 to 100,000 - 34%< P>$100,000 to 335,000 - 39% < P>$335,000 to 10 million - 34%
$10 million to 15 million - 35%
$15 million to 18,333,333 - 38%
More than $18,333,333 - 35%
As a corporate shareholder/owner, you will be considered an employee and most likely draw a salary from your corporation. This salary will be subject to personal income tax, FICA (Social Security) taxes, and state and federal unemployment taxes. FICA taxes are generally the same (in total) on the wages of a corporate employee/owner as would be the self-employment tax on the same amount of business income if you were a sole proprietor or a partner.
Corporations have several advantages, including tax advantages, limited personal liability, and continuous existence.
Limited personal liability. The main reason most businesses incorporate is to limit owner liability to the amount invested in the business. Generally, stockholders in a corporation are not personally liable for claims against the corporation and are, therefore, at risk only to the extent of their investment in the corporation. Likewise, the officers and directors of a corporation are not normally liable for the corporation's debts, although in some cases, an officer whose duty it is to withhold federal income tax from employees' wages may be liable to the IRS if the taxes are not withheld and paid over to the IRS as required. Most states have similar laws imposing personal liability upon corporate officers for withheld state income taxes or for unpaid sales and use taxes.
Being incorporated can also protect you from personal liability regarding lawsuit damages not covered by your corporation's liability insurance policies. For example, if someone slips on a banana peel in your store and sues the corporation for ten million dollars, the plaintiff can't go after your personal assets. When you incorporate, however, you need to follow several corporate formalities and requirements to protect your limited liability benefit. Don't start a corporation on a shoestring. If your corporation is capitalized too thinly with equity capital (your money) as compared to debt capital (borrowed money), the courts may determine that your corporation is a thin corporation and hold you and your stockholders directly liable to creditors.< P>You can also lose your limited liability if you do not observe corporate formalities, such as the election of directors by shareholders, appointment of officers by the board of directors, and the maintenance of separate legal existence of the corporation. This is called "piercing the corporate veil" by the courts, and means if a corporation is not adequately capitalized and properly operated to protect the interests of creditors, the courts can take away the veil of limited liability that normally protects the stockholders. Piercing the corporate veil is relatively uncommon. A much more frequent problem is that many banks and other lenders will not loan money to a small incorporated business unless someone, usually the stockholders of the corporation, personally guarantees repayment of the loan. < P>The limited liability feature is an important protection from personal liability for debts, such as accounts payable to suppliers and other creditors. Even this partial protection is a significant advantage of incorporating for most small business owners. To help you avoid personal liability for corporate acts, consult your attorney and keep thorough and specific records of your corporation's operations, policies, and meetings.
Income splitting. By using a corporation, you may be able to split your overall profit between two or more taxpayers so that none of the income gets taxed in the highest tax brackets. The total tax paid by the two taxpayers -- you and your corporation -- may be less than if all of the income were taxed to you, as in a sole proprietorship. See Chapter 14 on p. 222 for a more detailed discussion of how income splitting can help reduce your income and estate taxes.
Fringe benefit plan deductions. Federal and state tax laws permit you, as a corporate employer, to provide a number of different fringe benefits to shareholders/employees on a tax-favored basis. These tax-favored fringe benefits include medical insurance plans, self-insured medical reimbursement plans, disability insurance, and group-term life insurance. An unincorporated business receives the same tax treatment for its employees, but not for its owners. In addition, a corporation -- other than an S corporation -- can generally deduct medical insurance premiums it makes on behalf of an employee who is an owner of the business, and the employee is not taxed on the value of the benefit provided. This is far more favorable than payments of salary to an employee, which are fully taxable. So the tax benefits of employee fringe benefits are another reason for incorporating your business and becoming an employee of the corporation. Major types of fringe benefits that allow for tax deductions to the corporation and no taxable income to the employee are discussed in more detail in Chapter 13.
Tax break for dividends received by a corporation. C corporations can deduct 70% of the dividends they receive from stock investments from their federal taxable income. This tax benefit, called the dividends received deduction, is discussed more in Chapter 14.
Tax break for investing in small business stock. The tax law provides major tax incentives for investing in the stock of certain small corporations. This incentive is not available for investments in unincorporated businesses or in stock of S corporations. A noncorporate investor who purchases "qualified small business stock" after August 10, 1993 and holds it for five years or more will be allowed to exclude from his or her taxable income up to 50% of any capital gain reported on the sale of stock. At the current maximum tax rate on such capital gains of 20%, this translates into a very low effective tax rate of only 10% on gains from qualified small business stock.
In addition, even if such stock is sold before the five-year holding requirement is met, the 1997 tax law allows the seller to "roll over" the gain by reinvesting the proceeds within 60 days in another qualifying company's stock, with no tax incurred if the entire proceeds of sale are reinvested. Better yet, the period in which the first company's stock was held can be counted towards the five-year holding period requirement if the second company's stock is later sold for a gain.
Qualified small business stock is stock of a C corporation that meets an active business test during the period the stock is held. To meet the active business test, a corporation must use at least 80% of its assets in the conduct of one or more qualified trades or businesses. Personal service firms, banks, finance or investment businesses, insurance companies, and farming businesses are not considered qualified trades or businesses; neither are companies in certain extractive industries, or in the hotel, motel, or restaurant businesses. In addition, the corporation must not have more than $50 million in gross assets before or immediately after the stock is issued to the investor. Stock in a special entity, such as a Domestic International Sales Corporation (DISC), regulated investment company, or a real estate investment trust, is also considered ineligible for this tax incentive.
Continuous existence. Unlike a sole proprietorship or partnership, a corporation has continuous existence and does not terminate upon the death of a stockholder or a change of ownership of some or all of its stock. Creditors, suppliers, and customers, therefore, often prefer to deal with an incorporated business because of this greater continuity. Naturally, a corporation can be terminated by mutual consent of the owners or even by one stockholder in some instances.
In addition to having more paperwork and recordkeeping requirements -- in order to maintain the corporate veil of limited liability -- corporations must ensure they meet all annual report filings and, in some circumstances, SEC requirements as well. Incorporation takes a lot of organization and maintenance, and you will want to know all you can about its operations and costs.< B>
Cost of incorporating. Besides the usual filing fees required by state agencies for articles of incorporation, name reservation, and issuing stock, and often for appointing an in-state registered agent to receive legal process, legal fees will often run between $500 and $1,000, even for a simple incorporation. If you need to obtain a permit from the state to issue stock or securities, legal fees can be much more.
Double taxation. While this section has outlined a number of important tax advantages of incorporating a business, the picture is not all that one-sided. Regular corporations (C corporations) have one major potential disadvantage that usually does not exist for other legal forms of doing business: the problem of potential double taxation of the earnings of the corporation. This problem arises because a C corporation must first pay corporate income taxes on its taxable income. Then, the after-tax earnings may be subject to a second tax on either the individual stockholders, if the earnings are distributed as dividends, or as a corporate penalty tax if the earnings are not distributed as dividends.
The main ways in which a corporation's earnings can be subject to double taxation are:
- Payment of taxable dividends
- Penalty tax on corporate accumulated earnings
- Penalty tax on personal holding company income
Chapter 14 discusses various tax-planning techniques that will permit you to avoid the problems of potential double taxation. Most of those disadvantages are not applicable if you elect S corporation status.
Personal service corporations. Certain kinds of corporations, called qualified personal service corporations (QPSCs), are taxed at a flat rate of 35%, instead of the graduated tax rates listed in the corporate tax rate table featured earlier in this section.9 While it may not always be clear whether an incorporated service business is a QPSC, the IRS defines a QPSC by these characteristics:
nAt least 95% of the value of its stock is held by employees or their estates or beneficiaries; and< P>nThe employees perform services at least 95% of the time in the following fields: health, law, engineering, architecture, accounting, actuarial science, performing arts, or consulting.
If the potential tax disadvantages of the C corporation make it an undesirable choice in your case, you have another option: the S corporation.
Advantages and Disadvantages of S Corporations
The first thing to understand about S corporations, formerly referred to as Subchapter S corporations, is that they are just like any other corporation in terms of corporate law requirements, limited liability of shareholders, and all other corporate aspects; however, they are treated differently when it comes to how they are taxed. An S corporation is simply a regular corporation that meets certain requirements and has elected to be treated somewhat like a partnership for federal income tax purposes. Most, but not all, states also allow this special tax treatment for S corporations. See Sections II(e) and IV(c) of the state chapter, for a discussion of how S corporations are treated for tax purposes in your state.< B>
S Corporation Requirements
To qualify for S corporation treatment, your corporation must meet the following requirements:
nIt must be a domestic corporation -- that is, incorporated in the United States.
- No shareholder can be a nonresident alien individual.< P>- All of its shareholders must generally be individuals, although certain trusts, called Qualified Subchapter S Trusts and Grantor Trusts, may hold stock under certain circumstances. No shareholder can be a corporation or a partnership, except for certain tax-exempt organizations.
- The corporation can have only one class of common stock and no preferred stock.
- There cannot be more than 75 shareholders.14 For this purpose, a husband and wife who are both stockholders, as well as their estates if one or both is deceased, will be counted as only one stockholder, whether or not they hold or held the stock in joint ownership.
- The corporation cannot be a financial institution, insurance company, or a special corporation such as a DISC or "possessions corporation" (one that operates primarily in the U.S. possessions, Puerto Rico and the Virgin Islands).
- Less than 25% of the corporation's gross receipts must be from passive sources, such as interest income, dividends, rent, royalties, or proceeds from the sale of securities. If this test is failed in three successive tax years, S corporation status will be terminated. The passive income limit does not apply at all for a brand new corporation or an existing corporation that has no accumulated earnings and profits when it elects S corporation status.
Electing S Corporation Status
To become an S corporation, your company must meet the above requirements and file an election on Form 2553 with the IRS. For your convenience, a sample of Form 2553, Election by a Small Business Corporation, is provided on pp. 56-59. The election must be signed by all of the corporation's shareholders, including your spouse, who may have a community property interest in stock that is in your name. The S corporation election must be filed during the first two months and 15 days of the corporation's tax year for which the election is to go into effect or at any time during the preceding tax year.
Since a newly formed corporation that wants to start out as an S corporation does not have a preceding tax year, it has to file an election in the two-month and 15-day period after it is considered to have begun its first tax year. Its first tax year is considered to start when it issues stock to shareholders, acquires assets, or begins to do business, whichever occurs first. Filing of articles of incorporation with the secretary of state usually does not begin the first taxable year.
You should take care to file the election at the right time, which can be tricky, since it is sometimes difficult to determine when a corporation first begins to do business. There can be some horrendous tax consequences if you operate the corporation as though it were an S corporation, and the election is later determined to have been filed too early or too late. Thankfully, under a recent tax law change, if an attempt to elect S status for the current taxable year is filed too late, the election will apply to the following year. (Previously, a late election NEVER became effective, which was a very serious tax trap.)
You should also take extreme care if you elect to change your regular C corporation over to S corporation status; consult a competent tax adviser first. A regular corporation that elects to become an S corporation will generally be subject to an eventual corporate-level tax on any built-in gains on its assets -- assets with a value greater than their tax basis -- if assets are sold for a gain within ten years.< B>
Federal Tax Treatment of S Corporations< /B>
Once a corporation has made an election with the IRS to be treated as an S corporation, its shareholders will generally report their share of the corporation's taxable income or loss on their individual tax returns. That is, the corporation "passes through" its income or loss and tax credits to the shareholders in proportion to their stock holdings in the corporation, much like a partnership.
The S corporation does not usually pay tax on any of its income. Any domestic S corporation, however, must file Form 1120S, U.S. Income Tax Return for an S Corporation, regardless of any tax due. Form 1120S must be filed by March 15, if filing under a calendar-year basis, or the 15th day of the third month following the close of a fiscal year.
An S corporation must furnish a copy of Schedule K-1, Shareholder's Share of Income, Credits, Deductions, to each shareholder. By not providing Schedule K-1 before filing Form 1120S, the S corporation could incur penalties.
Profits of an S corporation are deemed to be distributed to its shareholders on the last day of the corporation's tax year, whether or not the profits are actually distributed. Thus, if profits of an S corporation are distributed as dividends, the distribution itself is ordinarily not taxable, so there is no double taxation of distributed profits.
Until the 1993 tax law changes, S corporations enjoyed a clear tax advantage over regular corporations because the maximum tax rate on S corporation income taxed to shareholders was significantly below the top regular corporation tax rate. However, now that the top individual rate is 39.6% on S corporation shareholders, and the top corporation rate is generally 34% or 35%, S corporations don't necessarily offer an advantage over regular corporations. They may even be at a tax disadvantage in the case of high-income S corporation shareholders who are in the 39.6% bracket -- those with taxable incomes of more than $250,000.< B>
Terminating an S Corporation Election< /B>
If it becomes desirable to revoke or terminate S corporation status after a few years, as is often the case, this can be done if shareholders owning more than half the stock sign and file a revocation form. A revocation is effective for the tax year it is filed, but only if it is filed during the first two months and 15 days of that tax year. If it is filed later in the year, it does not become effective until the next tax year.
Doing anything, however, that causes the corporation to cease to qualify as an S corporation -- such as selling stock to a corporate shareholder -- will also terminate the election, effective on the first day after the corporation ceases to qualify as an S corporation. In that case, the company must file two short-period tax returns for the year, the first -- up to the date it ceased to qualify -- as an S corporation, the second as a regular taxable corporation.
Until recently, the tax laws provided that once a corporation terminated an S corporation election, it could not reelect S corporation status for five years, unless it obtained the consent of the IRS, which was rarely given. However, the law was recently changed, so that now the five-year rule only applies if the S corporation election was terminated on account of violation of the excess passive income rule for three consecutive tax years.
For a corporation, electing S corporation status can be very advantageous in some instances, and less so, or even disadvantageous in other situations. An S corporation election should not be made without the advice and assistance of a tax professional, since it is a very complex and technical area of the tax law.
Electing S corporation treatment for a corporation is usually most favorable in these types of situations:
nWhere it is expected that the corporation will experience losses for the initial year or years of doing business and where the shareholders will have income from other sources that the "passed through" losses can shelter from tax. If S corporation losses are passive losses -- such as losses from real estate investments -- they can only be used to offset other passive activity income, except for certain shareholders who are real estate professionals.
- Where, because of the shareholders' low tax brackets, there will be tax savings if the anticipated profits of the corporation are passed through to them rather than being taxed at corporate tax rates.
- Where, particularly in the case of a new business, the risk of failure makes the limited liability feature of a corporation important, and where flow-through tax treatment of losses or income is desired. A regular corporation provides limited liability, but not flow-through tax treatment. A sole proprietorship or partnership provides the latter, but not limited liability. While it is true that both flow-through tax treatment and limited liability can be obtained by creating a limited liability company (LLC), a number of states still require that an LLC have at least two owners, unlike an S corporation, which can be owned entirely by one person.
- Where the nature of the corporation's business is such that the corporation does not need to retain a major portion of profits in the business. In this case, all or most of the profits can be distributed as dividends without the double taxation that would occur if no S corporation election were in effect.
- Where a corporation is in danger of incurring an accumulated earnings penalty tax for failure to pay out its profits as dividends.< B>
While there are some significant advantages to operating as an S corporation, the S corporation election is frequently not advisable under some circumstances. Some of the possible disadvantages of operating your business in the form of an S corporation are:
- The change to S corporation status may eventually result in a large corporate-level tax on built-in gains, where the corporation owns assets that have a value greater than their tax cost or "tax basis" at the time of the conversion to S status.
- The change to S corporation status, for a corporation that accounts for inventories on a last in, first out (LIFO) basis can result in an immediate LIFO recapture tax on all the previous years' tax deferrals that have been built up by using the LIFO tax accounting method.
- The tax law regarding S corporations is very complex and you should expect to pay fairly substantial additional legal or accounting fees to your tax adviser, compared to what would be necessary with a regular corporation.
- S corporations are now treated almost exactly like regular corporations with respect to pension and profit sharing plans. One important difference remains; any employee who owns 5% or more of the stock and participates in the S corporation's pension or profit sharing plan is prohibited from borrowing from the plan, unlike a participant in a regular corporation's retirement plan.
- Certain built-in gains of an S corporation may be taxed to the corporation and the shareholder for federal tax purposes. Built-in gains are untaxed gains on the assets of a corporation that would have been recognized as taxable if the assets had been sold at fair market value on the day a corporation became an S corporation. In addition, capital gains on sale of the stock of an S corporation will not qualify for the new 50% capital gain exclusion for regular corporations (see "Tax Break for Investing in Small Business Stock" on pp. 41-42).
- Fringe benefit payments for medical, disability, and group-term life insurance for 2% shareholders are deductible, to the corporation, but are taxable to the shareholder/employee. An exception to this partnership treatment of S corporation shareholders is for medical insurance premiums paid on their behalf, which can be deducted by the S corporation. However, the amount deducted by the corporation for medical insurance must be reported as taxable compensation income on the shareholder/employee's Form W-2, for income tax purposes, but not for FICA (Social Security) tax purposes if the insurance plan covers employees generally.
- S corporations cannot benefit from the corporate dividends received deduction that is discussed in further detail in Chapter 14.
- Unlike many regular corporations, very few newly electing S corporations may now have a fiscal tax year that ends earlier than September.< B>
Advantages and Disadvantages of Limited Liability Companies
The S corporation and the limited partnership may soon become endangered species due to the appearance of a new form of legal entity that has a number of advantages over both and is proliferating across the country, the limited liability company (LLC). An LLC closely resembles and is taxed as a partnership, but it offers the benefit of limited liability, just like corporations. It is also similar to a limited partnership, except that in an LLC, all partners have the benefit of limited liability.
In 1988, the IRS concluded in Revenue Ruling 88-76 that a Wyoming limited liability company could be classified as a partnership for federal income tax purposes, despite its limited liability, because it lacked continuity of life (it was required to cease existence after 30 years, under Wyoming law).
This ruling was highly favorable, from a taxpayer's standpoint, because it held that an LLC, which offers the corporate benefits of limited liability, could qualify for the flexible flow-through tax treatment of a partnership. Because this favorable IRS ruling opened the floodgates, the District of Columbia and all of the other states have since followed Wyoming's lead in adopting similar LLC laws.
Doing business as an LLC has a number of benefits over any other form of business organization, which accounts for its sudden popularity. Advantages of the LLC include the following:
- It combines the limited liability features of a corporation and the flow-through tax treatment of income and losses of a partnership.
- It provides the simplicity of a sole proprietorship, for a one-owner business, but with the limited liability features of a corporation. Under IRS regulations effective January 1, 1997, a sole proprietorship can be set up as, or converted to, a one-person LLC with no federal tax consequences.
- Unlike a general partnership, owners of an LLC have limited liability, and, unlike limited partners in a limited partnership, they do not lose their limited liability if they actively participate in management.
- While its flow-through tax advantages are generally only slightly superior to those of an S corporation, an LLC is not subject to the numerous technical rules that apply to S corporations. Thus, for example, an LLC can have more than 75 shareholders; have foreign owners ("members"); have owners that are corporations, partnerships, trusts, or other LLCs; derive a large portion of its revenue from certain net passive income sources; and issue more than one class of stock. Violation of any one of these technical restrictions may disqualify an S corporation.
- For certain leveraged real estate investments, LLCs have significant advantages over either partnerships or S corporations with regard to the ability of the owners to take tax losses, under technical tax rules having to do with "tax basis."< B>
Despite the obvious advantages of LLCs, there are also some downside factors you should consider before you rush to set one up. Some of the disadvantages of operating your business as an LLC are as follows:
- LLC laws are new and untested, unlike the corporation and partnership laws, which have evolved over time. Your lawyer may not be able to give you clear advice on a number of legal questions that may arise in the course of operating an LLC, which could lead to some unpleasant surprises.
- Sole owners are not able to establish LLCs under the laws of some states. However, now that the IRS has changed its policy, and will allow LLCs to be treated as sole proprietorships for tax purposes -- rather than taxed as corporations, as previously -- it is expected that nearly all states will change their LLC laws to permit one-owner LLCs. All but a few states have already done so (see Section II(f) of your state's chapter). If your state lags behind, one way to get around this problem is to make your spouse a second member of the LLC.
- While most states will follow federal tax treatment of an LLC where it is taxable as a partnership for federal income tax purposes, a few states, for example, Texas and Pennsylvania, impose a corporate income or franchise tax on LLCs.
- Perhaps unintentionally, a partnership tax law provision in the Revenue Reconciliation Act of 1993 will adversely impact some professional service firms that are organized as LLCs, rather than as partnerships. Under the 1993 tax law amendments, certain payments made by partnerships to outgoing partners, for goodwill or unrealized receivables, are no longer deductible to the partnership, unless they are made to a general partner in a service partnership, such as a law or medical partnership.
Since LLCs with more than one member can elect to be treated as partnerships for income tax purposes, this 1993 law applies equally to professional service firms that are either LLCs or partnerships -- with one important Catch-22: since an LLC has no general partners (all of its partners have limited liability, like limited partners), then no payments by an LLC to buy out one of its members will qualify as deductible under this tax law. This can be a serious tax disadvantage for a professional service firm that operates as an LLC rather than as a partnership.< P>- Although LLCs can engage in most businesses that are permissible for a corporation to engage in, certain states do not yet allow for professional service firms, such as law firms, physicians, or other professionals, to operate in LLC form.
- Some states have a built-in requirement that an LLC must terminate within 30 years, which is not required of other kinds of business entities. However, many states have recently repealed such requirements.
- Finally, a significant disadvantage of an LLC, compared to a limited partnership, is that limited partners in a limited partnership are not subject to self-employment tax on their distributive share of the partnership's profits. No such exemption is currently available for an LLC that is treated as a partnership for tax purposes.< P>Regarding this last disadvantage, the IRS has proposed to treat certain members of an LLC like limited partners, thus exempting them from self-employment tax on their share of an LLC's earnings if certain conditions are met. The proposed regulations, if they go into effect, would treat a partner or member of any limited partnership, LLP, or an LLC that is taxed as a partnership as a "limited partner" for self-employment tax purposes, unless the individual:
- Has personal liability for debts or claims against the entity; or< P>- Has authority (under the laws of the state where the entity was formed) to contract on behalf of the partnership or LLC; or < P>- Participates in its trade or business for more than 500 hours during its taxable year.
Partners who are "service partners" in a service partnership or LLC (in the fields of health, law, engineering, architecture, accounting, actuarial sciences, or consulting) would not be able to qualify as a limited partner for self-employment tax purposes, however.
Many have complained that the IRS is seeking to overturn long-standing laws that have exempted limited partners from self-employment tax on their earnings. Therefore, Congress has ordered the IRS to refrain from implementing the proposed regulations while it seeks to develop a legislative solution to this issue.< B>
Converting to a Limited Liability Company< /B>
In Revenue Ruling 95-37, the IRS ruled favorably that an existing partnership may generally be converted, tax-free, to an LLC if the LLC qualifies for partnership tax treatment. In fact, this conversion can be done without terminating the partnership's taxable year -- the LLC is simply treated as a continuation partnership -- and without obtaining a new federal employer identification number for the LLC. Thus, converting your existing partnership to an LLC is fairly simple and relatively free of tax complications, at least under federal tax laws.
In contrast, be aware there is no tax-free way to convert a corporation to an LLC. The conversion of an existing incorporated business to an LLC is likely to have severe tax consequences, including:< P>- Recognition of gain or loss by the corporation upon distribution or transfer of its assets; and
- Recognition of gain or loss by the shareholders upon liquidation of their stock in exchange for the corporation's assets.
Accordingly, extreme caution is advised before converting to LLC status. Consult a good tax adviser before you consider setting up an LLC, despite its obvious attractions. See Section II(f) of the state chapter (on CD-ROM) for more specific information on LLCs in your state.
Should You Incorporate Outside Your Home State?
For most small businesses, there is little reason to consider incorporating your business under the laws of some state other than where you live. In fact, there are several good reasons why you should not incorporate in a different state than where your business is based:
- Your corporation may have to pay a qualification fee to transact business in your home state as a foreign corporation. See the section below on tax and legal implications of doing business in other states, and Section II(d) of the state chapter for your state for a summary of fees imposed on foreign corporations seeking a certificate of authority to do business in your state.
- If your attorney is a local lawyer, he or she may be less familiar with the corporate laws of some other state than those of your state. Thus, your attorney might either charge you more for researching the law of an unfamiliar jurisdiction or give inaccurate advice.
- In many states, your corporation will have to pay some sort of minimum annual franchise tax or capital tax to the state of incorporation, even if you do no business there.
Don't fall into a trap and believe the newspaper ads that tell you to incorporate in wonderful, tax-free Nevada or some other state and avoid your state's corporation income or franchise taxes. It simply doesn't work, unless you are planning to commit fraud. If your corporation does business in your state, it pays the same taxes on its taxable income regardless of whether it is incorporated in your state, Nevada, or in the Grand Duchy of Luxembourg.< P>Perhaps the only valid reason why you might want to incorporate your business elsewhere would be to take advantage of some particular provision or flexibility that is available under the corporate laws of a particular state, such as Delaware. If you own all the stock of your company, it is unlikely you would ever need to take advantage of any such corporate provisions, which are usually only of interest to publicly-owned companies or in private companies where an incumbent group is seeking to maintain control of a corporation's board of directors.
For example, in some states, it is easier for a small shareholder or group of shareholders owning relatively few shares of the stock to disrupt the company's business by forcing a liquidation of the corporation. Thus, if that is a concern in your state, you might prefer to incorporate your business in a state whose corporate laws make it harder for owners of a minor percentage of the stock to force such a liquidation of the business.
The tax and legal implications of doing business in other states are discussed further in Chapter 14. Also, check the CD-ROM at the back of the book for the laws affecting corporations in your home state or the state you're considering incorporating in.