Guaranteed Payments: The Equivalent of a Salary for LLC Members and Partners

When a company has multiple members, this is called an LLC. LLCs are treated like a partnership by the IRS for federal income tax purposes. The treatment comes with various tax benefits that can make the LLC entity type a preferred format over the corporation for some businesses.

LLCs offer limited liability protection without the double taxation of a regular corporation. As a member of an LLC, members receive payments in one of two ways. They may receive payment through a salary or any other form of planned and recurring payment.

Second, they may have payments that hinge upon the company’s financial performance, such as profit-sharing plans. In particular, LLCs are set up to not pay corporate taxes.

All earnings are reported on a Schedule K, which is filed with the IRS and distributes all profits to members’ individual taxes

Something called a “pass-through” taxation leaves all the LLC’s taxes to be paid by members

Guaranteed payments have limited effect on the overall tax rate paid by a member: Either funds are held as earnings within the LLC and taxed by passing through to individual returns or are paid out as guaranteed payments, which are then taxed as self-employment income.

The IRS says salary payments and other payments are considered guaranteed payments, and profit-sharing payments are called distributions. Because of the nature of guaranteed payments, the LLC receives tax advantages for all guaranteed payments that it makes to members.

Because special elections are taxed differently than other types, partnerships and limited liability companies are referred to as “entities” when they have two or more partners or members. These are referred to also as the owners and are taxed on a pass-through basis for federal income taxes purposes.

Such entities are not subject to a direct federal income tax. Guaranteed payment is a specific term in the Internal Revenue Code, which is defined as payments to a partner to a partner capacity for services or the use of capital if determined without regard to the income of the partnership.

The courts have determined that a partner is acting in a capacity as a partner when performing services that are ongoing and integral to the business of the partnership.

Guaranteed payments of revenue made to owners of an LLC, in particular, can have tax benefits attached that are not applicable to other types of payments.

Any regularly scheduled payment to a member of an LLC for services rendered that is not predicated on the LLC's income, such as in the case of salary, should be treated as a guaranteed payment.

The good news for the LLC is that guaranteed payments are deductible by the LLC as business expenses and the net profit of the LLC is reduced by that amount.

The bad news for the member receiving the guaranteed payment is that the payment is treated as an ordinary income

Like with ordinary income, the guaranteed payments don’t have to pay income tax and the FICA tax from a salary would be paid. However, the guaranteed payments are subject to estimated income taxes and self-employment taxes.

Also, if premiums for health insurance are paid by the LLC on behalf of a member for services rendered, then those premiums are also treated as guaranteed payments

Guaranteed payments have other ramifications relative to the member's capital account in the LLC especially if the LLC is losing money

An LLC is treated as a pass-through entity by default by the IRS unless the owners, known as members, elect to be treated as a corporation

A pass-through entity does not pay taxes on its profits at the business level.

The entity passes a proportionate share of profits and losses through to the members, who then record share on personal income tax returns and pay taxes on the share at an individual rate

Distributions, or payments, of excess profits made to members of an LLC, are constrained by the company's status as a pass-through entity.

Distributions are one-time payments made from profits as investment income for members as a return for investing in the company.

The IRS treats payments differently from guaranteed payments and allows cash distributions to be made to members without incurring self-employment taxes.

Distributions are generally made relative to prior or current year's earnings, or in liquidation of a member's interest or the LLC, whereas guaranteed payments are made irrespective of earning considerations.

Cash distributions are generally treated as a return of the member's capital or previously taxed income

Using cash distributions to pay salary exposes to the risk that the IRS may reclassify the distribution as a guaranteed payment and subject the payments to self-employment taxes, penalties, and interest.

Although the IRS relieves the LLC of much of the tax burden associated with guaranteed payments, the partners take up the slack.

Partners must make estimated income tax payments each quarter on all funds received through guaranteed payments.

Members should be careful not to use one-time cash distributions as a means to pay salaries, as the IRS may reclassify payments as guaranteed payments and require members to make good on all self-employment taxes associated with that type of income.

LLC members must also pay self-employment taxes on all guaranteed payments on their individual taxes.

Self-employment taxes are 13.3 percent on the first $106,800 in earnings, and 2.9 percent on all earnings beyond that. There is some flexibility, though for LLCs and there are benefits for small businesses. The owners pay taxes based on the distributive share of their income.

Instead of receiving the income from the entity as a paycheck with wages, the owners are given a payout in income in the form of a capital distributions. These distributions are payments that the LLC makes to owners in respect to the ownership

Generally, the amount of the distribution to which an owner is entitled is determined based on the percentage ownership interest in the entity relative to the other owners.

For years where an entity does not make a profit, the entity generally will not make a distribution to its owners.

This may be problematic where an owner is heavily involved in the day-to-day operations of the entity and needs a steady stream of income on which to live or where the owner’s percentage ownership interest does not reflect the actual value the owner brings to the entity in terms of experience, time commitment, or other expertise, thus, these calls for a guaranteed payment

Guaranteed payments are payments that an entity makes to an owner whether the entity makes a profit or not.

Unlike distributions, however, even if the entity loses money in a year and does not pay any profits out to the other owners, the owner who gets a guaranteed payment will still be compensated for the work rendered for a certain year

The guaranteed payment for a partnership or an LLC is the functional equivalent of a salary to a shareholder-employee in an S or a C corporation

Like a salary expense, the guaranteed payment is treated as an expense to the entity and may pass-through as a deduction to the entity’s owners.

All salary payments to members are treated as a business expense, reducing the taxable amount reported on the LLC’s Schedule K

The guaranteed payment factors into the performance of the entity, so that to the extent any net income is not paid out to the owners as a guaranteed payment, the excess net income is typically divided among the owners as a distribution.

Owners are subject to self-employment tax on guaranteed payments and distributive share of income.

The entity will not withhold taxes on either of the payments, and the owners will need to file estimated income tax returns.

Guaranteed payments are typically deductible by the entity on Form 1065 as a business expense.

Guaranteed payments are also listed on Schedules K and K-1 of the partnership return.

The individual partner reports guaranteed payments on Schedule E of IRS Form 1040 as ordinary income, along with the distributive share of the partnership's other ordinary income.

Startup owners who need the assurance of a consistent salary-type payment that might not be proportionate to the percentage ownership interest of the company, need not insist on using an S corporation or C corporation through which to do business

Such owners should consider whether an LLC or partnership is still the best entity in light of the fact that a guaranteed payment could be used to accomplish compensation goals.

Types of Distributions

LLCs make two types of payments to members which are draws and distributions

Draws can be taken at any time and are an advance on expected profits that would be allocated to the member at the end of the year

Draws are typically not guaranteed unless the member manages the business and the draw is used as the member's salary.

The members are not considered employees of the business if the business was organized as a corporation.

Guaranteed draws are used as a substitute for a salary and ensure that a member that is running the day-to-day operations of the company is compensated for the services before other members receive payments out of profits

The other type of payment -- distributions -- is distributed at year-end and is a member's proportionate share of the company's profits.

Tax Treatment

A guaranteed draw, or payment, is used as the LLC equivalent of salary to managing members

A guaranteed payment has certain tax benefits.

The managing member must pay the full amount of the employment tax

Tax Benefits

A managing member who receives part of company revenue as a guaranteed draw or payment only ends up paying approximately 7 percent taxes, or half the amount of the employment tax rate, on the amount.

The IRS considers the managing member active in the daily business of the LLC and allows a deduction of half the employment taxes on the managing member's tax return

Most LLC members view the lower tax rate applicable to guaranteed draws treated as wages as a significant benefit.

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