New York S Corp Formation

New York S Corporation Formation

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Steven S.

Steven Stark

284 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.
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Richard G.

Richard Gora

157 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.
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Joshua G.

Joshua Garber

199 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.
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Scott S.

Scott Stram

162 reviews
As a member of both the New York and New Jersey Bars, Scott Stram is an accomplished lawyer with experience in a range of legal and business areas. This includes corporate law, data security, compliance, real estate, and intellectual property. Before founding Stram Law, Scott was a compliance officer for a company that performed property audits, a director of a security consulting practice, and an operations officer for Viacom and CBS.
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George S. G.

George S. Georgiades

George S. Georgiades is the founding partner of Georgiades & Associates, dba Alternative Finance Law, in New York. George’s six years of experience have been focused exclusively on Business Formation and Securities and Finance matters for startups, emerging growth, and publicly reporting companies. He prides himself on his ability to provide meaningful support to his clients from day one.
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Jessica K.

Jessica Kagansky

Jessica Kagansky is a business attorney who offers her legal services to corporate clients in New York. She holds a J.D. degree in law, which she obtained from the Northwestern University School of Law. Jessica primarily specializes in drafting, negotiating and reviewing commercial contracts. She is also skilled in legal research and writing. Jessica has been serving as a pro bono attorney at Sanctuary for Families since January 2018.
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Benjamin T.

Benjamin Thompson

1 review
Ben handles complex commercial disputes and transactions. His practice areas include intellectual property, entertainment, e-commerce, employment, corporate structuring, bankruptcy, and alternative dispute resolution. Ben was recently an adjunct professor of law teaching Negotiation Strategy at Benjamin N. Cardozo School of Law and coaches the school’s mediation and negotiation competition teams.
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Steven F.

Steven Fairchild

3 reviews
Sometimes a business just needs the occasional helping hand with various legal issues. Steven Fairchild does freelance legal work in the New York area and brings ten years of legal experience to every request. He can help your business with contract review, intellectual property issues, corporate law, and even litigation if necessary. Mr. Fairchild can help foster your business's growth.
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Paul H.

Paul Holley

Paul Holley is a business lawyer that has been licensed to practice law in New York for the past five years. He combines his expertise as an entrepreneur and his skills as a lawyer to better assist his clients. Paul focuses on offering legal assistance to startup companies and entrepreneurs. He is exceptionally skilled in drafting and negotiating commercial contracts. Paul has been an attorney at Goldberg & Lasson for the past five years.
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Mario N.

Mario Naim

133 reviews
Mario's firm focuses on serving growth companies throughout the venture capital life cycle from startups to public companies. The firm provides services related to business law, specifically corporate, securities, business combinations and commercial transactions. He has also helped foreign clients in the acquisitions of businesses in the U.S., Canada, Europe, the Middle East, and South America.
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Why use UpCounsel to hire a New York S Corporation Formation Attorney?

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Why use UpCounsel to form an S Corporation in New York

Starting an S Corporation in New York 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 S Corporation.

When forming an S Corporation in New York with UpCounsel, the attorney you choose to help you will conduct a business name search for your New York 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 Incorporation have been prepared and successfully filed with the New York Secretary of State, your New York 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.

Requirements for Forming a New York S Corporation

Choosing a Company Name for Your S Corporation

One of the first steps in the process of forming your New York 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 any New York S Corporation or foreign S Corporation reserved or registered and cannot contain the words "bank", "trust", "trustee,""incorporated", "inc.", corporation", or "corp.", or "insurer" or "insurance company" or any other words suggesting that it is in the business of issuing policies of insurance and assuming insurance risks.

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 New York S Corporation 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 New York.

Certificate of Incorporation: When forming an S Corporation in New York, the Certificate of Incorporation must be filed with the New York Department of State Division of Corporations. New York state law requires that certain information be included in your Certificate of Incorporation when forming your New York S Corporation.

This information must include:

  1. The S Corporation name.
  2. The County in New York where the S Corporation will be located.
  3. The S Corporation must designate the New York Secretary of State as its agent for service of process. An address must be provided so that the Secretary of State may mail a copy of any process received.
  4. The organizer's signature.
  5. Name and address of the filer of the Certificate of Incorporation.

Publication: According to Section 206 of the Limited Liability Company Law, you are required to publish a copy of the Certificate of Incorporation after it has been filed, or a notice that acknowledges the formation of an S Corporation. This must be published in two newspapers designated by the county clerk of the county in which the S Corporation office is located for six consecutive weeks.

S Corporation Qualification Requirements: New York does not automatically treat your company as a New York S Corporation unless you are mandated to file as an S corporation under Tax Law section 660(i). A corporation will be deemed to have made that election under Tax Law section 660(i) if the corporation's investment income is more than 50% of its federal gross income of that year. This provision only applies to S Corporations taxable under Article 9-A.

If you are not mandated under Tax Law section 660(i), in order for a corporation to qualify as a S Corporation for tax purposes, it must meet the following requirements:

  1. Be a federal S corporation.
  2. Be a general business corporation taxable under Article 9-A or a banking corporation taxable under Article 32 of the New York State Tax Law. Insurance corporations taxable under Article 22 or any corporation taxable under Article 9 can't elect to be a New York S corporation.
  3. Get consent to the New York election from all the corporation's shareholders.

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

Organizers: One or more people may form a S-Corp, yet they do not need to be members of the S Corporation.

Minimum Number of S Corporation Organizers: One (or more).

Eligibility: An organizer may be an individual, partnership, limited partnership, trust, estate, association, corporation, S-Corp, or other entity, whether domestic or foreign.

S Corporation Operating Agreement: Every S Corporation with more than one member is required to have an S Corporation Operating Agreement. The Certificate of Incorporation may contain restrictions or prohibitions on the power of the members to adopt, amend, or repeal an operating agreement. If there is more than one member, any operating agreement shall initially be agreed to, in writing, by all of the members and must be entered into within 90 days of filing the Certificate of Incorporation.

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 Certificate 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.

Resident Agent needed for a New York S Corporation

Remember that the registered agent for your New York S Corporation must be the New York Department of State. Every New York S Corporation must have a registered agent in New York, which is the person or office designated to receive official state correspondence and notice if the company is "served" with a lawsuit. The registered office may be a place of its business.

New York Secretary of State

Once you create an S Corporation in New York, the New York 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 New York Secretary of State.

Recurring Responsibilities and Duties for New York S Corporations

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

Records: Each New York S Corporation 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 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 Incorporation and all amendments thereto, together with any powers of attorney pursuant to which the Certificate of Incorporation 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 New York S Corporation

The processing fee for the Certificate of Incorporation is generally about $200 and the filing and submission of the Certificate of Publication is about $50. These fees can change so it would be best to check with the New York Department of State on what the latest fees are. You may pay these fees in many different forms including cash, check, money orders, or debit and credit cards. .

Taxes for a New York S Corporation

A New York 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.

New York 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.

New York State Income Tax: A New York S Corporation must file a New Yor Form CT-6, the Election by a Federal S Corporation to be Treated As a New York S Corporation. Under New York law, the S Corporation is subject to pay a fixed dollar minimum tax based on New York receipts.

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.

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