Both types of legal entities are created in a state according to the states legal entity laws.  An S Corp is first incorporated as a regular corporation under the states general incorporation statutes.  Accordingly, it must file Articles of Incorporation, appoint a registered agent and process a standard incorporation filing.  Once formed, it must appoint directors to manage the business and typically shares are issued to shareholders.

No state has any different rules for S corporations than for regular ones.  The S designation is a tax designation only.  However, because the federal tax laws impose additional rules and restrictions, there are some limitations that an S Corp must abide by in order to qualify for the S taxation treatment.  For one, it can only have one class of stock.  Secondly, there are restrictions on the number of shareholders and the type of shareholders.  These can vary with the latest regulations but most S corporations have only a few shareholders and they are all natural persons who are citizens or permanent residents of the United States.

Check with your accountant for the list of requirements.  It is important that the S Corp not only meet these at the time it makes the election but that it continue to comply at all times.

TAXATION OF AN S CORPORATION | S CORP

As noted above, the S corporation is a state created corporation that has made a special election with the Internal Revenue Service.

The election is called a subchapter S election and in order for a corporation to make the election, it must meet certain restrictions and limitations (as summarized above).

In order for a corporation to be treated and taxed as an S Corp from the date it was formed, the S election must be made within the first few months of its incorporation date.  Once an election is filed and submitted, a qualifying corporation is known as an S Corp and this designation is purely for tax purposes.

Once an S election has been filed and accepted, the corporation is now known as an S Corp for tax purposes and it is taxed under a whole different set of laws than a regular corporation.  This set falls under SubChapter S of the Internal Revenue Code- hence, its name.   Under this structure, the corporation avoids the double taxation of a C corporation and income generated is only subject to one single layer of taxation.

Another term used to describe the taxation is pass through taxation.  This term is used because the corporation itself will not pay any taxes.  Rather, the income that generates tax will be passed through to the shareholders in accordance with their proportionate ownership interests.  Then, each shareholder will report their share and pay taxes on their perosnal returns.  The income from an S corp is reported and calculated on a Schedule to the shareholder’s 1040 income tax return.

While the S Corp does not pay taxes, it does file an informational return with the Internal Revenue Service.

Related articles

• How to Incorporate a Business (thellcexpert.com)
• Types of Corporations (thellcexpert.com)

Upon first glance, this question may sound strange to most people. How can a limited liability company entity also be a corporation?

But the answer to this is actually YES. You see, an “S corporation” designation is not a legal entity choice. Rather, it is a tax designation under the Internal Revenue Code. Before the existence of the LLC entity, the IRS created the S corporation as a way for a corporation that is a small business to avoid the double taxation of the corporate tax structure.

The S corporation rules require that the legal entity meet a laundry list of requirements that are designed to ensure that it truly is a small business as defined by the tax laws. These restrictions related to the number of owners, the type of owners, and a required simplicity of capital structure.

They named it the S corporation election because at the time, only the corporate legal entity qualified to elect S corporation status. However, in 1997, there were regulations passes that enabled the LLC (limited liability company) to also elect S corporation tax status if the LLC also met the laundry list of small business IRS requirements.

So, an LLC can be formed as a limited liability company under state law and gain all the state law benefits but also qualify to be taxed as an S corporation under federal tax laws. This is just one of the many advantages the LLC has over other entities. It offers the most tax choices.

Now, the LLC by default already qualifies for a single layer of taxation and there are no requirements to qualify for this. Accordingly, it does not have the same concern of double taxation as the corporation. Both the LLC default tax structure and the S corporation tax structure offer the same pass through taxation (single level) benefits.

However, there are some differences between the two tax structures that may or may not benefit your particular business. If this is an issue you want to explore, you should seek the advice of a tax attorney or a tax accountant who has ample experience in the differing tax structures.

An S Corporation Is a Tax Status

It is important to first understand that an S corporation is not a legal entity in the same way that as an LLC, a corporation or a limited partnership entity.  An S corporation begins as a general corporation under state law.  The “S” is really a tax characteristic under the Internal Revenue Code.  So when you are looking at your state laws for different entity requirements, you will not find the S corporation in the corporations and legal entity statutes.

What this translates to is that the only reason to be an S corporation is for tax purposes.  An S corporation is a corporation under state business organization law and subject to the same formalities and requirements as a corporation. The corporation generally has more legal mandates and a less flexible structure when it comes to business operations.

An S Corproation Has Limitations and Conditions

Also, from a tax perspective, the Internal Revenue Service imposes a laundry list of requirements and limitations for an S corporation to meet in order to qualify for a single layer of taxation.  On the other hand, the IRS automatically qualifies a limited liability company for such single layer of taxation without any requirements of an election or additional restrictions and limitations.

These restrictions and limitations must continually be adhered to and any deviation, even if it is accidental, will result in loss of S status.  A loss of S status usually means triggered tax obligations and sometimes penalties and fees. One benefit of the LLC is that you, as a busy business owner, do not have to worry about these.  It is one less set of legal compliance requirements you need to keep up with as your business evolves.

While many of these restrictions and limitations may not seem to onerous when starting a business many businesses have later found them to negatively affect their ability to grow or take on financing in later stages. It is sometimes difficult later to unwind an S corporation status if it is needed for business reasons.

An S Corporation Is Subject to Same Formalities and Requirements as a General Corporation

A corporation is simply not as flexible as an LLC when it comes to operations and ownership matters.  The corporation statutes structure a corporation with a required board of directors and standard stock ownership.  The LLC can alter the legal default structure of an LLC by agreeing to different arrangements in an LLC Operating Agreement.

From a non-tax perspective, the LLC clearly provides a lot more simplicity and flexibility which is important to a small business.

An LLC Can Choose S Corporation As Well for Tax Purposes

From a tax perspective, there is a difference between a default LLC tax structure (which is known as a pass through) and an S corporation tax structure.  Both offer a single layer of taxation but there are some technical and sometimes complex differences when it comes to specific tax matters like the ability to take losses, the ability to allocate tax items to owners, and self employment taxes.

Now, having said this, one thing that many do not know. .  even some accountants do not know. .  is that an LLC can choose an S corporation tax structure if it desires.  It requires meeting the same laundry list of requirements and making an election.  But bottom line here is that a limited liability company can have all the state law advantages of an LLC but be taxed exactly like an S corporation if this is more suitable.

The S corporation does not have this flexibility in choosing tax structure.  The LLC is a newer entity in which both state lawmakers and the federal government (Internal Revenue Service) made it a goal to be most suitable for a small business owner.

One of the many reasons that S corporations are still popular is because accountants are used to using S corporations as they have been around longer and so they advise their clients to use them.  Many of these professionals have not kept up to date on the tax rules applicable to the limited liability company.  Now, in some situations using corporation that has elected S corporation status may be preferred but make sure that the person advising you is experienced in both types of legal entities when conducting this analysis for your situation.