LLC Electing S Corp Status: Everything You Need to Know

LLC electing s corp status is when a company formed as an LLC elects themselves as an S corporation. This is mostly done for tax purposes-- s corporation tax treatment can be more desirable.

S corporation status may be more desirable because in an LLC, a partner is subject to self-employment tax on his/her share of the business’ income. In an S corporation, however, an owner is not subject to self-employment tax on his/her pass-through income or distributions from the s corporation.

S corporations and LLCs are two of the most popular legal structures for small businesses, and these businesses tend to face conflict when having to choose between the two. Being able to form an LLC and then electing it as an s corp status is thereby beneficial to individuals in such situations.

Differences between LLCs and S Corporations

The following is a list of key similarities between LLCs and S corporations.

  • They operate under a “pass-through” tax treatment.
  • They don’t pay taxes based on the business’ profits but rather are passed along to the owners and reported individually.
  • They help keep the owners and the business separate, and provide liability protection.

The following is a list of key differences between the two:

  • An LLC is typically easier to run in terms of administrative work because of fewer state filings and forms, lower start-up costs, less formal meetings and documentation.
  • An LLC is more flexible in how owners divide profits and losses among owners.
  • A multi-owner LLC is automatically taxed as a partnership, whereas LLCs with just one owner are taxed like one-owner businesses, otherwise known as sole proprietorships.
  • The S corporation is more flexible in how profits are divided and paid to the owners.

To combine your LLC with an S corporation, you have to first formalize your business as an LLC, and then electing to have it treated as an S corporation by the Internal Revenue Services (IRS).

Legally, your company would be an LLC, which means that you will receive the advantages of an LLC. This includes fewer filings with the state, less paperwork, and generally lower costs.

From the perspective of the IRS, your business would be an S corporation. You would get the pass-through income of a sole proprietorship or partnership, but with the added flexibility of dividing some of the company’s income.

S-Corp election

If an LLC makes this election, it has to:

  1. Transfer all its assets and liabilities to the corporation in exchange for the corporation’s stock
  2. Distribute the stock to its owners in complete liquidation

The regarded transfer to the company is tax free, supposing Sec. 351(a) pertains and the limited liability company (LLC)’s accountabilities do not surpass the foundation of its possessions. The limited liability company (LLC) can then designate S status, if its members are qualified to claim S corporation stock.

The individual usually documents the election to be charged as a corporation on Form 8832. Entity Classification Election, in agreement with Regs. Sec. 301.7701-3(c). If an limited liability company that is qualified to go for S status timely reports an S election (Form 2553), the individual is regard as to have chosen to be taxed as a business (Regs. Sec. 301.7701-3(c)(1)(v)(C)) this is saying the entity is looked at as having chosen to be taxed as a business (Regs. Sec. 301.7701-3(c)(1)(v)(C)).

The effective date of the classification, under Regs. Sec. 301.7701-3(c), election stated on Document 8832 is not above 75 day of the week ahead of the date on which the determination is filed. It cannot be beyond 12 months after the date on which the selection is put on record. This is saying the classification change could be retroactive and that can go up to 75 days. This is just prior the entity files Document 8832.

Under S corporation regulations, a recently established corporation must file the S election. This has to be on or before the 15th day of the third month following the corporation’s date of activation, which is the initial date that the company has stockholders, acquires assets, or starts leading business. If the individual plans to elect to be treated as a corporation and turn out to be an S corporation on the similar date. Form 2553 is filed out then, and it needs to agree with the S corporation guidelines.

It is recommended that the person make sure they file the Form 2553. However, it must be done before 75 days or two months is up. Also, 15 days after the date the S election is to become efficient so that the person will use the Form 2553. They will do this with both the Form 2553 and Form 8832 filing restrictions.

A LLC that elects to be treated as a business and become an S corporation on the similar time is not obligated to do so if it happens to be initial day of the calendar year. The selection can be prospective or retroactive. However, this is only inside the time limits involving the date the LLC files Document 2553.

Permitting a LLC to make a midyear S election makes sense since a recently picking S corporation can start its initial S year at any acceptable time. To conform to S corporation rules, it is highly recommending that the operative date of the S choice should not happen. Before the earliest date that the LLC has members, acquires assets, or starts business that is conducting.

An entity that makes the deemed election to be taxed as a corporation by filing the S election, Form 2553, will be classified as a corporation on the date the S election is operative and will endure to be handled as a corporation until it makes another entity arrangement (Regs. Sec. 301.7701-3(c)(1)(v)(C)).

If a person makes the decision to alter its cataloguing, it cannot do so once more throughout the 60 months. This is after the effective date of the selection short of the IRS consent (Regs. Sec. 301.7701-3(c)(1)(iv)).

Make the S-corp election at the same time you file your taxes by filing Form 1120S, attaching Form 2533 and submitting along with your personal tax return. All memberships of the LLC must consent to the selection at the period of filing out Form 2553.

Relief for Missed S Corporation Elections

the Internal Revenue Service (IRS) updated In Rev. Proc. 2013-30, and combined the events for challenging respite when taxpayer’s failure the deadline for making numerous S corporation- linked elections, in addition to the election to be conserved as an S company. This is up under Sec. 1362(a) and the election to handle an appropriate object as a corporation that is under the Regs. Sec. 301.7701-3(c)(1)(v)(C) so that it can designate to be preserved as an S corporation. The respite obtainable under Rev. Proc. 2013-30 is in lieu of demanding help through the letter ruling procedure, and user dues are not charged for anything.

Electing S Status by LLC Treated as Partnership

When a qualified object categorized as a partnership selects to be preserved as a business (or changes into an establishment under a state-law conversion act), the partnership is preserved as supplying all its liabilities and assets to the business in trade for stock.

Consider liquidating by circulating the business’s stock to its associates directly before the day ends and the election is effectual. the conversion could take place at the start of the year, and if it does, the supposed liquidation and contribution are treated as if they happened directly before the close of the preceding tax year.

If the company creates an appropriate S corporation election for its first year, the business will be an S corporation for that time, and there will be no overriding time throughout which the person was a C corporation (Rev. Rul. 2009-15).

Associates might desire to integrate their partnership to get personal liability guard and make sure the business’s steadiness. If S corporation position is chosen, the business can go on to pass through its losses and gains to the possessors. On account of the S corporation pass through guidelines, nevertheless, special allocations will not be permitted.

How S Corporations Are Taxed

The following are guidelines centered around the taxation of S corporations:

●An S corporation is a pass-through entity in that both income and losses pass through the corporation to the personal tax returns of its owners.

●S corporations report their income and deductions.

●S corporations file an information return form reporting the corporation’s income, deductions, profits, losses, and tax credits that year.

●Shareholders must be provided a Schedule K-1, listing their shares on the above items.

●An owner/employee must report the corporation’s earnings on his/her personal income tax return, as well as pay his/her share of social security and medicine taxes on any employee salary paid.

Being categorized as an S corporation worker also has one big benefit: S corporation tax treatment can offer a technique to get some cash out of your corporation. This happens without expending service taxes since you do not have to recompense service tax on deliveries (bonuses) from your S business—that is to say, on salaries and incomes that pass through the formation to you as a possessor, not as a worker in reward for your services.

The bigger your circulation, the less employment tax you will need to pay. The S corporation is the merely commercial form that makes it likely for its proprietors to save on Medicare taxes and Social Security which is the is main reason it has been, and continue, popular with specialists. S corporation position is permitted only if:                                                                                                            

  • the stock has simply 100 stockholders
  • no one of the entity's nonresident aliens are stockholders —that is to say, nonresidents who are not living in the United States
  • the entity has just one category of stock—for instance, there can’t be ideal stock providing some stockholders special privileges, and
  • no one of the entity's stockholders are other partnerships or corporations."

C-Corp election

The IRS pertains default guidelines to figure out how an LLC will be overtaxed.

The first step technically, if your business is able to qualify as an S-Corp for treatment filing Form 8832. In return, it informs the IRS that you are not interesting in getting your limited liability company (LLC) taxed. Especially, as the only partnership or proprietorship under the default regulations, but as a company. Unless you are thinking about filing as a C-Corp on the present or earlier tax returns, you will need to file 8832. You will do this with your S-Corp election.

Potential One-Class-of-Stock Issues

When an LLC elects S status, it is essential that its operating arrangement and other documents adapt to the S corporation suitability prerequisites. Any previous documents founded on the LLC’s treatment as a partnership will need to be revised or exchanged.

Allocations founded on anything beyond the percentage of tenure breach and the one-class-of-stock rule are not acceptable in an S corporation. Shareholders in the S corporation will need to be of the similar class, excluding the ability to hold non voting and voting shares.

The working contract of a limited liability company (LLC) functioning as a partnership, instead, might stipulate that some members are partners that general and that others are considered to limited partners. Also, the Internal Revenue Service (IRS) has decided that the limited and general partnership welfares that discuss identical privileges to liquidation and distribution proceeds please the one-class-of-stock condition.

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