By Heather Huston, Assistant Service Manager, BizFilings
Whether you are just starting your business, or have been operating as a sole proprietor or general partner, you may be wondering about the advantages of incorporating your business as an S corporation.
Many business owners assume it will be too costly or time-consuming—but neither is the case.
What is an S corporation?
The definition of an S corporation is a corporation that is treated, for federal tax purposes, as a pass-through entity through an election made with the Internal Revenue Service (IRS) to be considered an S corporation. S corporations are taxed under Subchapter S of the Internal Revenue Code (IRC), which is where their name is derived from (Subchapter S Corporation). What does that mean?
However, like a sole proprietorship or a partnership, an S corporation passes through most of its income and loss items to the shareholders. Unlike a regular corporation, there is no "double taxation," meaning that the owners do not need to pay taxes twice - once at the corporate level and again on the individual shareholder level. Each shareholder is subject to his or her own individual tax rate on the profits and losses passed through to him or her, recorded as net income on the income tax return.
S corporation advantages
The advantages of an S corporation often outweigh any perceived disadvantages. The S corporation structure can be especially beneficial when it comes time to transfer ownership or discontinue the business. These advantages are typically unavailable to sole proprietorships and general partnerships. S corporation advantages include:
- Protected assets. An S corporation protects the personal assets of its shareholders. Absent an express personal guarantee, a shareholder does not have personal liability for the business debts and liabilities of the corporation. Creditors cannot pursue the personal assets (house, bank accounts, etc.) of the shareholders to pay business debts. In a sole proprietorship or general partnership, owners and the business are legally considered the same—leaving personal assets vulnerable.
- Pass-through taxation. An S corporation does not pay federal taxes at the corporate level. (Most—but not all—states follow the federal rules. View the Ongoing Corporation Requirements page of our state guides to see if your state recognizes the federal S corporation election.) Any business incomeor loss is "passed through" to shareholders who report it on their personal income tax returns. This means that business losses can offset other income on the shareholders’ tax returns to reduce income tax paid. This can be extremely helpful in the startup phase of a new business. (A corporation that does not elect S corporation status and accumulates passive income is at risk of being classified as a personal holding company.)
- Tax-favorable characterization of income. S corporation shareholders can be employees of the business and draw salaries as employees. They can also receive dividends from the corporation, as well as other distributions that are tax-free to the extent of their investment in the corporation. A reasonable characterization of distributions as salary or dividends can help the owner-operator reduce self-employment tax liability, while still generating business-expense and wages-paid deductions for the corporation.
- Straightforward transfer of ownership. Interests in an S corporation can be freely transferred without triggering adverse tax consequences. (In a partnership or an LLC, the transfer of more than a 50-percent interest can trigger the termination of the entity.) The S corporation does not need to make adjustments to
propertybasis or comply with complicated accounting rules when an ownership interest is transferred. Cashmethod of accounting. Corporations must use the accrual method of accounting unless they are considered to be small corporations. (A small corporation has gross receipts of $5,000,000 or less.) S corporations, however, usually don't have to use the accrual method unless they have inventory.
- Heightened credibility. Operating as an S corporation may help a new business establish credibility with potential customers, employees, vendors
andpartners because they see the owners have made a formal commitment to their business.
S corporation disadvantages
An S corporation may have some potential disadvantages, including:
- Formation and ongoing expenses. To operate as an S corporation, it is necessary to first incorporate the business by filing Articles of Incorporation with your desired state of incorporation, obtain a registered agent for your company, and pay the appropriate fees. Many states also impose ongoing fees, such as annual report and/or franchise tax fees. Although these fees usually are not
expensive,and can be deducted as a cost of doing business, they are expenses that a sole proprietor or general partnership will not incur.
- Tax qualification obligations. Mistakes regarding the various election, consent, notification, stock ownership
andfiling requirements can accidentally result in the termination of S corporation status. Although this is relatively rare, and usually can be remedied easily, it is still an issue that is not a factor with other business forms. Calendaryear. An S corporation must adopt a calendar year as its tax year unless it can establish a business purpose for having a fiscal year.
- Stock ownership restrictions. An S corporation can have only one class of stock, although it can have both voting and non-voting shares. Therefore, there can’t be different classes of investors who are entitled to different dividends or distribution rights. Also, the number of shareholders is limited - there cannot be more than 100 shareholders. Foreign ownership is prohibited (ex: a non-resident alien cannot be an owner), as is ownership by certain types of trusts and other entities.
- Closer IRS scrutiny. Because amounts distributed to a shareholder can be dividends or salary, the IRS scrutinizes payments to make sure the characterization conforms to reality. As a result, wages may be recharacterized as dividends, costing the corporation a deduction for compensation paid. Conversely, dividends may be recharacterized as wages, which subjects the corporation to employment tax liability.
- Less flexibility in allocating income and loss. Because of the one-class-of-stock restriction, an S corporation cannot easily allocate losses or income to specific shareholders. Allocation of income and loss is governed by stock ownership, unlike a partnership or LLC where the allocation can be set in the operating agreement. Also, the necessary accumulated adjustment account can be cumbersome to maintain, requiring input from an accounting professional. (Note: Shareholders of C corporations ordinarily can't deduct any losses at all, unless their stock becomes worthless or is sold at a loss.)
- Taxable fringe benefits. Most fringe benefits provided by the corporation are taxable as compensation to employee-shareholders who own more than 2 percent of the corporation.
Did You Know? LLCs and S Corp Election
To take advantages of the structural benefits of an LLC combined with the taxation benefits of an S Corp, you can establish your business entity as an LLC and then make the election to have it treated as an S corporation by the IRS for income tax purposes. Read more about LLCs electing S Corp tax status.
How to form an S corporation
To form an S corp, you must prepare and file Articles of Incorporation or a Certificate of Incorporation with the proper state authorities. You must also pay filing fees and any applicable initial franchise taxes or other fees. The type and amount of information required in the incorporation documents varies by state. If you incorporate through BizFilings, simply complete our online order form or place an order by phone, and we prepare and file your Articles of Incorporation.
After your Articles of Incorporation are filed, you need to file Form 2553 with the IRS to elect S corporation status for your company. With BizFilings’ Basic and Standard Incorporation Services, we will provide Form 2553 to you for you to finalize and submit to the IRS. Our Complete Incorporation Service includes an S Corporation Obtainment Service, where we interact with the IRS on your behalf to obtain S corporation status for your company.
Additionally, your S corporation must hold an organizational meeting (initial meeting of directors) where you adopt bylaws and undertake other initial corporate actions (such as appointing officers and approving a resolution to open a business bank account). You should distribute stock certificates to shareholders and record these transactions in the company’s stock transfer ledger. The actions of the organizational meeting should be documented and kept along with the Articles of Incorporation and bylaws in a corporate record book.
For specific questions on which business structure is best for your particular situation, it is best to consult an attorney or accountant.
Start Your S Corp Today
BizFilings can help you quickly form an S Corporation in three easy steps. Get your S Corp started today, and explore our flexible packages and tools for forming your business with the state, keeping your business compliant, and fulfilling additional state and federal requirements.