S Corp Ownership: Everything You Need to Know
S corp ownership can be complicated it is named due to being the subchapter S of the Internal Revenue Code and was enacted by Congress in 1958.3 min read
Updated November 19, 2020:
S corp ownership can be complicated. An S corp, named due to being the subchapter S of the Internal Revenue Code, was enacted by Congress in 1958. It was created to encourage the creation of and support of small and family businesses. A major component was the elimination of the double taxation scheme that conventional corporations are subject to.
The election of an S corp places limits on the type of shareholders an S corporation may maintain, per the IRS rules. This is derived from how taxes are imposed on a corporation.
In essence, an S corporation is a regular corporation, see C corporation, that elected special tax treatment that it is treated as a pass-through entity with respect to taxes. This means that the IRS permits shareholders in an S corporation to report taxes on a “pass-through" basis, wherein income and losses of the corporation are passed to a shareholder’s individual tax return. This means that taxes are not assessed at the initial corporate level.
Permissible shareholders in an S corporation, per IRS regulations, are either individuals or trusts and estates. Other corporations cannot be shareholders in an S corporation.
Only trusts with individual beneficiaries can have shares in an S corporation. Business trusts are not permitted to own shares. Estates of the deceased who owned shares in an S corporation, before death, can continue to be owners via the probate process.
As mentioned, other types of corporations are prohibited from owning shares of an S corporation. What’s more, partnerships and non-resident alien individuals are barred from owning stock in an S corporation. There are no exceptions to these limitations.
Note that If an S corporation share is issued to a prohibited entity, e.g. another corporation, the IRS can declare the entire S corporation status void by the IRS. As a result, the income generated by the corporation will be taxed at both the corporate level and to the individual shareholders.
Choosing S Corporation Status
While the S corporation model has important tax advantages and provides ownership flexibility, it is not always the proper choice for every start-up company due to certain restrictions. An S corporation is required to comply with the following:
- Maximum of 100 shareholders
- It must be a domestic, not foreign, business
- The shareholders are required to be US citizens or have legal residence in the US
- An S corporation is limited to one class of stock
As such, it depends on the long-term goals of the business. For instance, a company may want to be publicly traded or have international shareholders, making a C corporation, not an S corporation, as the better choice of business entity. C corporations, unlike S corporations, have no ownership limitations and can offer multiple classes of stock.
However, a U.S.-based business that can work within these limitations, would likely choose the S corporation model because it saves a lot of money and can avoid a lot of hassle when the company expands.
IRS rules allow US citizens and residents as eligible shareholders in an S corporation. Non-resident aliens are not permitted to be shareholders. Other corporations and partnerships are not eligible. Certain trusts and estates are eligible to hold S corporation shares. Nonprofits holding tax-exempt status are permitted shareholders.
S corporations are capped at 100 shareholders. However, a number of family members count as one shareholder, regardless of the family size. The term family, in this context, is all descendants of a common ancestor, going back six generations to the date of the application for S corporation status. Family also includes all the spouses of descendants.
This means that if a person, his or her spouse and children and grandchildren all owned stock in an S corporation, they all count as one shareholder.
Just One Class of Shareholders
Another significant limitation is that the S corporation is limited to one class of stock. To illustrate, an S corporation cannot issue a share that has a guaranteed dividend payment or first rights in the event of a liquidation. An exception to this rule regarding equal treatment of shareholders is voting rights.
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