Delaware S Corp Formation

Delaware S Corporation Formation

Where are you located?
Zip Code
FIND A LAWYER

How it Works

Request Proposals
Tell us about your legal need so attorneys can prepare custom proposals. It only takes a minute and your information is strictly confidential.
Review Quotes
Our algorithm matches you with attorneys qualified to handle your legal work. You can review their proposals and schedule consultations with no obligation.
Hire Your Lawyers
When you’re ready, hire the attorney that’s right for you. Use our platform to easily collaborate online and ensure your information stays safe and secure.
Steven S.

Steven Stark

359 reviews
For over 30 years, Steven Stark has offered counsel to non-profit organizations and private companies. He has a passion for helping small businesses in particular since he himself started several businesses of his own in New York and Florida. He understands the importance of small businesses having a reliable attorney to advise them about legal matters from their inception.
|
Get Proposal View Profile
Richard G.

Richard Gora

185 reviews
Looking for an attorney with experience? Richard Gora is the exact attorney you want. Having defended over 100 cases both in state and federal courts and working with clients from around the globe, Richard has an array of different experiences. His services are wide-ranging and include business litigation, securities litigations, employment litigation, and business counsel. Prior to founding Gora LLC, he worked for Finn, Dixon & Herling LLP for eight years.
|
Get Proposal View Profile
Joshua G.

Joshua Garber

249 reviews
Representing notable clients like Tesla and the City of Los Angeles, Josh Garber excels at helping clients with employment and labor laws. Many of his past clients have had great success using Josh for employment agreements and Division of Labor Standards Enforcement (DLSE) hearings. With his practical advice, he has even helped clients avoid going to court.
|
Get Proposal View Profile
Alex K.

Alex Kroeger

2 reviews
Real business experience to help real businesses. Prior to becoming an attorney I worked in product marketing for 10 years. I completed law school while working at a gig-ec... read more
|
Get Proposal View Profile
Nathaniel C.

Nathaniel Cade, Jr.

Nathaniel Cade, Jr. brings almost twenty years of experience to his practice. Focusing on all aspects of civil and appellate litigation, Nate focuses on products liability and complex commercial and business disputes. Clients have included Starbucks Coffee Company and Snap-on Tools. Nate also represents Wisconsin lawyers charged with ethics and professional misconduct violations.
|
Get Proposal View Profile
Chris B.

Chris Bourgeacq

1 review
Chris Bourgeacq is the founder of The Chris Bourgeacq Law Firm, PC in Austin, Texas. Board certified in Labor & Employment Law, he brings three decades of legal experience with extensive expertise in workplace law, labor law, litigation and mediation, and commercial law. In his spare time, Chris works with the Volunteer Legal Services of Central Texas. He was an Honor Scholar at the Washington University School of Law.
|
Get Proposal View Profile
Charone  F.

Charone Frankel

1 review
Charone Frankel is a business attorney with more than a decade worth of experience. She has been licensed to practice law in New Jersey and obtained her degree in law after her graduation from the University of California at Davis King Hall School of Law. Charone primarily specializes in legal cases that involve labor and employment law. She is also experienced in reviewing, drafting and negotiating commercial contracts. Charone founded her own legal firm in January 2018.
|
Get Proposal View Profile
Zafar M.

Zafar Musvi

2 reviews
Zafar Musvi is an attorney at law with more than six years of experience. He is licensed to practice law in Illinois and obtained his degree in law from the John Marshall Law School. Zafar primarily specializes in drafting, negotiating and reviewing commercial contracts. He has worked with numerous corporate clients, including Castifi, Castle and Paragon Water Systems. Zafar has been serving as an attorney at GCG Legal since February 2018.
|
Get Proposal View Profile
Gabriel G.

Gabriel Garcia

2 reviews
For the last 15 years, Gabriel has been a trusted legal advisor to leading brands in the rapidly growing healthcare and wellness industries. An expert in corporate, regulat... read more
|
Get Proposal View Profile
Heshmat A.

Heshmat Ali

Heshmat Ali is a corporate attorney who has been practicing law for over a decade. He is licensed to practice law in California and obtained his legal degree from the Southwestern Law School. Heshmat specializes in reviewing, drafting and negotiating commercial contracts. He also deals with legal cases related to immigration law. Heshmat often provides his legal assistance to startup companies. He served as an attorney at the Orange County Public Defender between 2008 and 2014.
|
Get Proposal View Profile
View All NEXT

Why use UpCounsel to hire a Delaware S Corporation Formation Attorney?

Confused by complicated questionnaires and government forms? Want to get your questions answered by a real attorney? UpCounsel provides personalized legal services with experienced attorneys to help form your Delaware S Corp the right way.
14 years

Average experience

You always get experienced professionals and high caliber work.

3x

Faster

Your work gets done quickly because professionals are always available.

60%

More cost effective

We use technology to cut traditional overhead and save you thousands.

UpCounsel has been talked about in:

Money-Back Guarantee on All of Your Legal Work

Applies to all transactions with verified attorneys on UpCounsel

In the event that you are unsatisfied with the work of an attorney you hired on UpCounsel, just let us know. We’ll take care of it and refund your money up to $5,000 so you can hire another attorney to help you.

Why use UpCounsel to form an S Corporation in Delaware

Starting an S Corporation in Delaware with a business startup attorney on UpCounsel is easy, informative, and cost-effective. In just three simple steps, our S Corporation attorneys will help you protect your business and personal assets, and help you organize your business for state and federal compliance for an S Corporation.

When forming an S Corporation in Delaware with UpCounsel, the attorney you choose to help you will conduct a business name search for your Delaware S Corporation and assist you in preparing your S Corporation Operating Agreement, along with providing other legal services based on your needs. Once your Certificate of Formation have been prepared and successfully filed with the Delaware Division of Corporations, your Delaware S Corporation has been formed and begins its existence as a corporate entity.

However, a corporation does not register as an S Corporation with the Secretary of State. It registers as a corporation with the state and then may file for S Corporation status with the IRS. S Corporation status is a taxation category which provides income tax advantages to small businesses.

Choosing a Company Name for Your S Corporation

One of the first steps in the process of forming your S Corporation is to choose your business name.

The business name that you choose must contain the words "Incorporated" or "Inc." It must be distinguishable (not the same as or deceptively similar to) the name of an S Corp or foreign S Corporation reserved or registered.

Your S Corporation name may contain the name of one or more members.

By using UpCounsel, you can choose several business names in order of preference. Your attorney of choice can then conduct a name check for your Delaware S Corp before filing to see which names are available. Once you have chosen an available name, your chosen S Corporation attorney can help you properly register your name with the State of Delaware.

Requirements for Forming a Delaware S Corporation

Articles of Incorporation: hen forming an LLC in Delaware, the Certificate of Formation must be filed with the Delaware Division of Corporations. Delaware state law requires that certain information be included in your Certificate of Formation when forming your Delaware LLC.

This information must include:

  1. The S-Corp's name
  2. Authorized entity's name and signature
  3. The name and address of the initial registered agent for service of process on the S Corporation.
  4. Date when S Corporation effective, if other than date filed.

Additionally, a Delaware S Corporation formation generally requires inclusion and/or consideration of the following:

S Corporation Qualification Requirements: For a corporation to qualify as a S Corporation for tax purposes, it must meet the following requirements:

  1. Must be a domestic corporation.
  2. Have only allowable shareholders including individual, certain trusts, and estates; and may not include partnerships, corporations or non-resident shareholders.
  3. Have only one class of stock
  4. Have no more than 100 shareholders
  5. Not be an ineligible corporation (i.e. certain financial institutions, insurance companies, and domestic international sales corporations).

Additionally, a Delaware S Corporation formation generally requires inclusion and/or consideration of the following:

S Corporation Operating Agreement: Although the S Corporation Operating Agreement is not required with the Articles of Incorporation, it is a good idea for every S Corporation with more than one member to have one. The Articles of Incorporation may contain restrictions or prohibitions on the power of the members to adopt, amend, or repeal an operating agreement. Delaware recognizes operating agreements as governing documents.

Membership: A S Corporation must have one or more members.

Eligibility Requirements: A natural person or an entity.

Procedure for Membership: The member may acquire an interest in the S Corporation directly from the S Corporation at the time of formation and, after formation, at the time provided in and upon compliance with the Articles of Incorporation or the operating agreement or, if not provided, only upon the vote of a majority in interest of the S Corporation members, excluding the vote of the person acquiring the membership interest, and only when the person becomes a party to the S-Corp's operating agreement.

Business Licenses: Business licenses and/or permits are required for most S-Corp's offering specific professional services. Contact the Delaware State Corporations Commission for specific licenses.

Resident Agent needed for a Delaware S Corporation

UpCounsel attorneys can also provide your business with a registered agent in Delaware. Every Delaware S Corporation must have a registered agent in Delaware, which is the person or office designated to receive official state correspondence and notice if the company is "served" with a lawsuit. The registered agent must have a permanent address in Delaware and be authorized to do business in the state. If the S Corporation itself is located in Delaware, it can act as its own registered agent.

Delaware Secretary of State

Once you create an S Corporation in Delaware, the Delaware Secretary of State will require that certain recurring responsibilities and duties be fulfilled. The most important of these are explained below.

For further information, contact the Delaware Secretary of State.

Recurring Responsibilities and Duties for Delaware S Corporations

Annual Report: Each S Corporation shall provide an annual report to the Delaware Secretary of State regarding its financial condition to each of its members.

Records: Each Delaware company must keep the following records open to inspection at its office:

  1. A current list of the full name and last known business or residence address of each member and of each holder of an economic interest in the S Corporation company set forth in alphabetical order, together with the contribution and the share in profits and losses of each member and holder of an economic interest.
  2. If the S Corporation is manager-managed, you will need a current list including the full name and business or residence address of each manager.
  3. A copy of the Certificate of Formation and all amendments thereto, together with any powers of attorney pursuant to which the Certificate of Formation or any amendments thereto were executed.
  4. Copies of the S-Corp's federal, state, and local income tax or information returns and reports, if any, for the six most recent taxable years
  5. A copy of the S-Corp's Operating Agreement, if in writing, and any amendments thereto, together with any powers of attorney pursuant to which any written operating agreement or any amendments thereto were executed.
  6. Copies of the S-Corp's financial statements, if any, for the six most recent fiscal years.
  7. The books and records of internal affairs as they relate to the S Corporation for at least the current and past four fiscal years.

Filing Fees for a Delaware S Corporation

Filings must be made with the Delaware Division of Corporations in which the S Corporation was organized, along with the appropriate state filing fee. The filing fee for the Certificate of Formation is $90. This fee can be subject to change, so make sure to keep yourself updated on the latest fee requirements on the Delaware Division of Corporations website.

Taxes for a Delaware S Corporation

A Delaware S Corporation is a special type of corporation created through an IRS tax election. An eligible corporation can avoid double taxation (once to the corporation and again to the shareholders) by a corporation with a Subchapter S designation by the IRS. A corporation must file a Form 2553 to elect "S" status within two months and 15 days after the beginning of the tax year.

Owners of the S Corporation report business losses or profits on their personal tax returns, and therefore the business itself is not taxed. Each shareholder is responsible for paying taxes on their pro rata share of the S corporation's items of income, deductions, and credits (through a Schedule K-1 form).

Delaware state law follows federal law for income tax purposes. Therefore if a corporation is classified as an association taxable as a S Corporation for federal income tax purposes, so will it be taxable as a corporation for state tax purposes.

Federal Income Tax: An S Corporation does not pay federal income tax.

Delaware State Income Tax: Every S-Corporation deriving income from sources within Delaware is required to file a Form 1100S, S-Corporation Reconciliation and Shareholders Information Return. Delaware recognizes the federal S election and does not impose corporate income tax on pass-through income

Federal Tax Identification Number: Your corporation will need to obtain a federal tax identification number, which is also known as an Employment Identification Number (EIN). You do not need to get a new EIN after the corporation choose to become a S Corporation. An EIN is similar to an individual's social security number. You will need an EIN for your S Corporation as long as there is one member, even if the S Corporation does not have employees. For certain tax filing requirements the attorney you choose on UpCounsel can help prepare your Federal Tax ID Application, if you have not done so already.

Start Your Business Off Right with an Affordable Attorney in Delaware

What Our Customers Have to Say

"UpCounsel gives me access to big-firm lawyers minus the big-firm price tag. I work with several attorneys on the platform and there are never surprises...I always receive quality legal work at competitive rates that larger firms simply cannot match."

Scott Woods
SVP & General Counsel

"Every startup needs to know about UpCounsel. We found great attorneys at great prices and were able to focus our resources on improving our business instead of paying legal bills."

Sean Conway
Co-founder & CEO

"Before UpCounsel it was hard for us to find the right lawyer with the right expertise for our business. UpCounsel solves those problems by being more affordable and helping us find the right lawyer in no time."

Tristan Pollock
Co-founder & COO

Find the best lawyer for your legal needs

Find a lawyer