S Corp: Definition, Requirements, Steps to Form

An S corp, a common business form allowed by the tax code, can distribute taxable income and credits directly to its owners, potentially offering tax benefits. Furthermore, stockholders must be US citizens or residents. The tax treatment is one of the most significant benefits of operating as a S Corporation. Unlike a regular C Corporation, which is taxed twice (once at the corporate level and again on shareholder dividends), the income of an S Corporation is not taxed at the entity level. Profits and losses "pass through" to shareholders, who record them on their personal tax returns. If one incorporates an LLC, one must additionally file IRS Incorporation 2553 to choose a tax classification. Owner-employees must compensate themselves fairly for their efforts. They will pay federal and state income tax, Medicare, and social security tax on such compensation.

What is an S Corp?

An S Corp, or sometimes called an S Subchapter, is one type of incorporated legal business entity. An S Corp has a similar business structure to a limited liability company and a C Corporation but what makes it different are distinct characteristics that meet specific IRS requirements.

An S Corp will protect a business owner from certain liabilities just like an LLC or a C Corp. The business is a separate entity from the owner so if there is a lawsuit or debt collection against the company, the owner’s personal assets are protected.

One great advantage of an S Corp is that it is a pass-through entity like an LLC. This allows business income, losses, deductions, and credit to pass directly to shareholders without paying federal corporate taxes.

Just like a C Corp, an S Corp can secure funding from outside investors, although a business will lose its status as an S Corp if it has more than 100 investors acting as shareholders or owners. Essentially, an S Corp shares the best benefits of an LLC and a C Corp.

To have your business qualify for an S Corp, it must meet strict requirements set by the IRS. These requirements include:

• No more than 100 principal shareholders or owners
• Owners must be US citizens or permanent residents
• Cannot be owned by any other corporate entity including other S Corps, C Corps, LLCs, business partnerships or sole proprietorships
• Required board of directors
• Required annual shareholder meetings
• Strict regulations on bylaws
• Strict regulations on issuing stock shares

Steps to Form an S Corp

Forming an S Corporation is similar to forming any other business. If you are ready to start your business and have decided that an S Corp is the right structure, you can follow these steps.

1. Name Your Business. Your business needs a unique name that is not already being used by another S Corp in your jurisdiction. You can contact your local state business offices to find out where to get a list of current S Corps to see what names are being used.
2. Set Your Board of Directors. Every S Corp is required to have a board of directors. The board of directors is your business's governing body that represents the shareholders of the company. One of the requirements of forming an S Corp is that this board needs to have regularly scheduled meetings and keep minutes for these meetings. The board will also develop policies for managing the company.
3. File Articles of Incorporation. When forming an S Corp, articles of incorporation must be filed with both the IRS and the Secretary of State. You must follow the rules and regulations of your state pertaining to filing articles of incorporation.
4. Issue Stock: S Corps can be in the form of either common stock or preferred stock
5. File Corporate Bylaws. Bylaws are another area of the S Corp that is strictly regulated by the IRS. Bylaws will outline the process for electing and removing directors from the board, how shares are sold, when meetings will be held, voting rights, and how the death of a director will be handled.
6. File Form 2553 with the IRS. After your S Corp has been approved by the Secretary of State, you must file the Election by a Small Business Corporation form with the IRS. This is form 2553 and it makes your company official with the IRS.
7. Assign and File a Registered Agent. Depending on your state, you may be required to appoint a registered agent for your S Corp. The registered agent will oversee receiving all legal documents between the company and government agencies.

If you would like more information about the IRS requirements for an S Corp, continue reading here.

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Essential Requirements for S-Corps

To get eligible for S-corp status in the US, a company must achieve some key conditions and must follow strict laws and regulations. Following are the essential requirements for an S corporation:

• Eligible Business Entity: The company must be a domestic corporation (established under state law) or an appropriate limited liability company (LLC) to qualify as an S corp. Partnerships and non-resident alien-owned companies are not suitable business formations.
• Limited Shareholders: An S corporation can only have 100 stockholders. Individuals, estates, certain trusts, or exempt organizations must be the only shareholders. Other companies, partnerships, or non-resident aliens are not permitted to be shareholders.
• Single Class of Stock: S corps are only permitted one class of stock. This requires that all shareholders have equal rights to dividends and liquidation profits. Voting rights differences are acceptable, but economic interests must be equal.
• Shareholder Election: To qualify as s-corp, both the corporation and its owners must submit Form 2553, Election by a Small Business Corporation, to the Internal Revenue Service (IRS).
• Tax Year: The S-corp may choose a tax year, either a calendar year or a fiscal year. The tax year of S-corp must coordinate with that of its shareholders/ owners.
• Pass-Through Taxation: An S company does not have to pay corporation federal income tax. Instead, it "passes through" its earnings and losses to the individual shareholders, who then declare their portion on their individual income tax forms.
• Shareholder Basis: To deduct their fair share of losses from their personal tax returns, shareholders must keep an adequate basis in their shares. Distributions and losses often result in a fall in basis, normally boosted by contributions and revenue.
• Recordkeeping and Compliance: S corps must keep accurate records and follow corporate procedures, such as conducting regular meetings and recording significant business decisions. It is crucial to abide by all applicable federal and state tax rules.
• Employment Tax Compliance: The S corporation must adhere to employment tax regulations, which include deducting and paying employment taxes from employee earnings. Actively participating shareholders shall be entitled to adequate pay, subject to employment tax.
• Tax Filings: An S corporation must submit Form 1120S, an annual informational tax return, annually to record its income, deductions, credits, and other tax-related data. For their tax filings, shareholders utilize Schedule K-1 (Form 1120S), which outlines their share of the income and deductions.
• State Requirements: S corporations must also abide by state tax rules and regulations, which might change from state to state.

Advantages of S Corps

S Corps provide several advantages to business owners and these advantages generally outweigh any potential disadvantages.

The most prominent advantage is the tax benefits that go along with forming an S Corp. S Corps are pass-through entities, so they do not have to pay federal taxes at the corporate level. This allows business losses to offset shareholder’s income reducing the amount of taxes paid.

S Corp shareholders also can be considered employees and draw an employee salary from the business. Other advantages to shareholders include receiving dividends and other tax-free distributions.

Just like an LLC, an S Corp protects the personal assets of its shareholders. A shareholder will not be personally liable for any business debts or company liabilities.

Another advantage to forming an S Corp rather than a C Corp is the ability to transfer interests or adjust property basis without facing tax consequences or being forced to comply with complicated accounting rules.

Finally, establishing an S Corp will give your business credibility that it may not gain under a sole proprietorship or an LLC. Suppliers, investors, and customers may be more inclined to work with a corporation because it shows a commitment to not only the company, but the shareholders as well.

Disadvantages of S Corps

Although the advantages to an S Corp generally outweigh the disadvantages, if you are considering forming an S Corp you should consider these potentially negative aspects:

• State Tax Limitations: Some states do not allow S Corp income to be taxed on the owner’s personal tax returns. In those states, S Corp income is taxed by the state separately as corporate income.
• Multiple Costs: There are numerous fees associated with an S Corp like filing fees for annual reports and articles of incorporation. It is worth noting, however, that there are also fees associated with other business entities such as LLCs or C Corps.
• Complex Establishment: S Corps are more difficult to establish and maintain than an LLC due to requirements of board of directors, annual shareholder meetings, and regulations on stock issuance
• Limited Owner Control: Owner of the company has less control than with an LLC or sole proprietorship
• Limited Liability Protection: The owner's assets are shielded against losses, debt, and lawsuits brought against the business.
• Single Level Taxation: This is seen as the primary benefit of an S corp over a C company. The corporation level of income taxes is not paid in an S corp. The corporation under a C corp. pays corporate income taxes, and any dividends to shareholders are subject to additional shareholder taxes.
• Lower Employment Taxes: One can own and work for the business, which allows them to lower their overall employment tax obligation. Shareholders can work for the company and receive pay in that capacity. On the sums received as a salary, employment taxes must be paid.
• S Corp Profits Decline: S Corp may have had lower taxed gains if one decides to sell the company.
• Cash Accounting Approach: If an S company maintains inventory, it must adopt the accrual method of accounting; otherwise, it may choose between the cash and accrual methods. In general, C companies cannot employ the cash approach.
• Passive Income Restrictions: S Corporations may face limitations on passive income, which is income earned from investments rather than regular business operations. If an S Corporation generates too much passive income, it could lose its S Corporation status and be subject to C Corporation taxation.
• Fringe Benefits: S corp stockholders could be subject to restrictions on perks like healthcare and retirement plan contributions. For shareholders, these benefits might not be as tax-advantageous as they would be for C company workers.
• Limited Loss Deductibility: The amount of business losses that S corp shareholders may deduct from their federal income taxes depends on their ownership stake in the S corp. Losses could not be immediately deducted if a shareholder's basis is insufficient, thus leading to a tax disadvantage.
• State Taxation: S Corps are subject to a wide range of state tax regulations. S corporations may not enjoy the same tax advantages as they do at the federal level in some states, and thus may still be required to pay state-level corporate taxes.
• Exit Strategy Restrictions: If a company intends to go public or be bought by a bigger corporation, the S corp form may not be appropriate since it complicates the selling or merger procedure.

How Are S Corps Taxed?

S Corps are a pass-through entity so instead of being taxed like a corporation, they are actually taxed similarly to an LLC. Business income, losses, deductions, and credits will pass directly to shareholders avoiding federal corporate taxes.

S Corp shareholders will report all financial information relating to the business on their individual tax returns and pay taxes at their regular income rates. This allows shareholders to avoid the double taxation usually associated with a corporation.

There are several forms that need to be filed with the IRS for S Corps taxes. The first form is Form 2553 which is the “Election by a Small Business Corporation” form. This form proves that the business meets all the requirements set forth by the IRS to be an S Corp.

Even though an S Corp is exempt from corporate taxes, the business still needs to file taxes and report its earnings to the federal government. This is done with Form 1120-S which reports the business income, loss, dividends, and other distributions passed from the business to the shareholders.

S Corp vs. LLC

S Corps and LLCs share many similarities, and both have their advantages and disadvantages.

An S Corp and an LLC offers the same liability protection to the business owner. Both business entities are considered separate from the owner. In the event of a lawsuit or a creditor collection, the owner’s personal assets are separate and protected from the business.

Both S Corps and LLCs are taxed in a similar manner in that they are pass-through entities. Neither business pays corporate taxes and, in both entities, the owner reports earnings and losses on their personal tax return avoiding double taxes.

LLCs tend to be simpler to set up and less expensive to maintain than an S Corp providing more flexibility for owners. This is due to the strict requirements that an S Corp must meet under the IRS guidelines.

If a business is looking to secure outside financing and big investors, an S Corp will be the better option because unlike an LLC, S Corps have shareholders and can issue stock to investors.

Another difference between these two business entities is that an LLC can be dissolved in the event that a member or an owner withdraws from the business. An S Corp tends to have perpetual existence.

While neither formation is “better” than the other, choosing which entity to form for your business will depend on your individual business needs. A business run by a single owner who wants to maintain full control of their company and have flexibility should choose an LLC.

If there are several owners involved in a business and the business will be seeking investors for additional funds, then an S Corp formation would be more beneficial.

Another option for a business with multiple owners is an LLC Partnership.

S Corp vs. C Corp

S Corps and C Corps are similar in that they are both incorporated, for-profit companies governed by state corporation laws. They both offer liability protection to the owners, are composed of a board of directors, must have corporate bylaws, and have shareholders meetings. The biggest difference between these two entities is the tax status.

C Corps are subject to federal corporate taxes which is usually described as a double tax. C Corps are required to pay taxes on 21% of their income and then owners will also pay tax on the dividends they receive.

S Corps avoid corporate taxes so owners will only pay taxes on income once, on their personal tax returns. For a smaller business just starting out, these savings on taxes can be extremely beneficial.

Unlike S Corps, C Corps do have several tax advantages to consider. A C Corp can deduct charitable contributions from their earnings. They can also offer untaxed benefits to their employees if 70% of employees receive the benefits.

Due to the strict regulations placed on S Corps by the IRS, C Corps offer more flexibility and ownership options than an S Corp. Owners of C Corps do not have to be US citizens or permanent residents and C Corps have more options for classes of stock. Furthermore, C Corps also have less restrictions when it comes to raising funds. If you are planning to incorporate your business and still are not sure about which structure to choose, seeking the advice of a corporate lawyer could be useful.

If you are planning to incorporate your business and still are not sure about which structure to choose, seeking the advice of a corporate lawyer could be useful.

Final Thoughts on S Corps

S Corp provides several benefits and advantages to small business owners in the United States. They provide limited liability, pass-through taxation, and a versatile company form. Business owners can enjoy the benefits of an S Corp while minimizing their tax responsibilities if they fulfill the qualifying criteria and follow the relevant formation and reporting procedures. However, it is important to understand the limits and limitations of S Corp status and compare them to other corporate forms, such as C Corps. Millions of organizations in the United States employ the S corporation form because of benefits such as reduced liability and tax savings.

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