Form of Incorporation

When starting a business, many entrepreneurs wrestle with the question of what corporate structure is business best.

Legal pros and cons aside, there are various tax and financial matters to consider when choosing.  (Note that these are general guidelines and in no way comprehensive).

The limited liability company (LLC) is a very popular form of business structure and one most entrepreneurs have at least heard of.  It offers liability protection while being flexible in the taxation department. But what many budding business owners don’t realize is that choosing to operate as an LLC isn’t the only decision to make; you need to choose what kind of LLC to operate.   By default, your LLC will be taxed as a partnership if there is more than one member (owner), or if you are the only member, as a sole proprietorship on your personal tax return. However, you may also make an election for the LLC to be taxed as a corporation or S-corporation, each with nuances of its own in the departments of health insurance, taxation, paperwork and especially owner compensation.

One mistake I often see small business owners make is thinking they can do as they wish with their profits. Unfortunately, unless the business is taxed as a sole proprietorship, the IRS has a lot to say about how you get your money.

C corporation

A C corporation is plainly just a regular corporation, without the subchapter “S” election. The C corporation has gotten a bad rap in my opinion. While it is true that its profits are subject to double taxation (taxed first at the corporate level and then again when profits are distributed as dividends), it is possible as a small business owner to manage the profit and keeping it small, by paying out profits in the form of salary. As the owner of a C corporation and working in the business, you will be compensated through the company payroll, with all of the payroll taxes and paperwork that would be involved with any other employee.

At the end of the year, the corporation will issue you a W-2 to claim your income on your personal tax return. What I find to be one of the biggest advantages of corporation is that its a great way to write off your medical costs as a single owner employee without other employees. A corporation can establish a Section 105 medical expense reimbursement plan, and run health insurance premiums and other medical costs like copays and prescriptions through the plan tax free. This isn’t something you want to handle yourself; be sure to work with a company that specializes in these plans to ensure compliance with IRS regulations around establishing the plan and reporting.

At year end, the corporation files its tax return on a federal form 1120 and a state corporate return and/or report. That may be multiple states if you operate in other states, or if your corporation was formed in another state.  Any profits left after salaries and expenses are taxed, and any losses may be carried backward or forward to offset profits in another year.

S corporation

The S corporation is not a taxable entity unto itself, but rather acts as a conduit, passing profits and losses generated at the corporate level on to the shareholders personally. These profits are reported on a Schedule K-1, and are not subject to employment taxes. Sounds like a great way to save some taxes, right? Wrong. The IRS frowns upon taking profits in an S corporation solely through the K-1. For owners who work in the business, the IRS requires a reasonable compensation be paid out as salary. As the sole owner and sole person working in a business, you’d have a hard time justifying to the IRS that the profits of the business were a function of the business alone and had nothing to do with your efforts. When you file your personal tax return then, you will likely have two components from your S corporation: your wages reported on a W2, and any profit or loss reported on a Schedule K-1.

Using the Section 105 plan mentioned above can be tricky. Participating as the sole employee and a greater than 2% owner, reporting and compliance can be complex but not insurmountable with professional advice.

Tax filings required of an S corporation include a federal corporate return, Form 1120-S; a state S corporate return, and possibly an additional corporate report depending state regulations where you operate or were formed.  Any profit or loss flows through to your personal return. There are rules that govern how those are taxed or deducted, depending on your “basis” — meaning your investment in the company. Without basis, the loss is not deductible. The rules pertaining to the deductibility of your loss are complex and best left to your tax professional to determine in your individual situation. Do document how much you are contributing to the company or withdrawing; it is important to know that for proper tracking. Note, too, that an S corporation is limited to 100 shareholders.

Partnership

A partnership, like the S corporation, is not a taxable entity but a conduit. All profits and losses flow through to the partners’ personal returns. But unlike an S corporation, a partner working in the company is not paid via payroll, but rather through “guaranteed payments.” Those are payments determined in advance by the partnership that the partner will receive in exchange for a contribution to the business, regardless of profits. Those payments received in exchange for working in the partnership are subject to self-employment tax. The partnership will file tax returns also: the federal 1065 plus any applicable state returns and reports.

Sole proprietorship

The most basic way to classify a single member LLC for tax purposes is to consider it “disregarded.” That means when the IRS looks at your LLC, it doesn’t see it, but only sees a sole proprietorship that is reported on a Schedule C on your personal tax return. That simplifies your tax reporting responsibilities, and also allows you to deduct losses more easily.

For owners who are active in the business and whose investment is at risk, losses may be used to offset other income. Any profits that are available from the business are yours to take at any time; they are considered to be draws and not salary or an expense. You should not pay yourself as an employee. As an owner, you are not eligible for a Section 105 plan; however if your spouse is a bona fide employee (and the only employee), he or she may participate and be reimbursed for the family medical bills through the plan.

Sole proprietors with an LLC don’t get off completely from filing corporate returns though- your home state may require a corporate report, as may other states where you operate or were formed. Finding out from a state that you should have filed a report all along can come as an unwelcome surprise in the form of penalties, and lead to a scramble to file prior year returns in a hurry.

If you’re debating your entity choice, looking for business planning tools, or have other questions about starting and operating a small business, the Small Business Administration website has a wealth of information available for free. You can find them at www.sba.gov.

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About Erin Baehr

Erin Baehr is a Certified Financial Planner™ and an Enrolled Agent, working in the finance and tax fields for eleven years. Erin is a NAPFA registered advisor, and owns Baehr Family Financial LLC, where she provides unbiased, objective financial advice in a cooperative relationship. As a Qualified Kingdom Advisor, Erin is dedicated to advising clients from a biblical worldview and teaching the principals of biblical financial stewardship. Erin authors a personal finance column for the Pocono Record, writes for Credit.com and publishes a blog at www.PurposefulMoney.com.

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