What Type of Entity Should I Be?
Clients who are starting a business often ask us “What type of entity should I be?” While there is no definitive answer, this tax tip will cover some of the more common choices that can be made, and some of the concerns and tax treatment of those choices.
When an individual starts a business and is the only owner, if that person does nothing else tax-wise, the business is treated as a sole-proprietorship, meaning the taxpayer files a Schedule C as part of his or her annual Form 1040. If two or more people start a business, and do nothing else, the business is treated as a partnership, and files a partnership return, Form 1065.
Many clients are concerned about legal protection and will ask “Should we incorporate?” The answer, as it is with most tax questions, is “it depends”. While corporations arguably provide the most legal protection of any entity, they are also a bit more costly to form than other entities, and can be a bit more cumbersome to operate. According to Nellie Akalp, in an article published in the CPA Practice Advisor on October 10, 2019, she states “the law requires a corporation to:
• Select a Board of Directors, meet with the board regularly and keep detailed meeting minutes.
• Formally register the business by filing Articles of Incorporation with the state.
• Obtain a Tax ID Number or Employer Identification Number (EIN) from the IRS.
• Draft corporate bylaws. Corporate bylaws are the official rules for operating and managing the company, proposed and voted on by the Board.”
Prior to 2018, corporate tax rates were graduated, the highest rate being 35%. The Tax Cuts and Jobs Act (TCJA) enacted in late 2017, changed the corporate tax rate to a flat 21% which was good for some, but not all. Corporations making less than $50,000 per year actually got a tax increase. Previously, the tax rate for this bracket was 15% so these corporations now have to pay 6% more in federal tax. Another consideration is the “double-taxation” of money taken out by the owners. Dividends paid to shareholders are not deductible by the corporation, and are taxed to the recipient.
For those who don’t want the formalities and expense of forming and operating a C corporation, forming a Limited Liability Company (LLC) can be an attractive alternative. We have had new clients tell us they are incorporated, which we usually verify on the Ohio Secretary of State’s website, only to find out they are really an LLC. An LLC is not an incorporated entity, but does provide a layer of protection. If a business is sued, and has not incorporated or become an LLC, the owner’s personal assets can be at risk. A single-member LLC, absent any other elections, files a Schedule C, just as a sole-proprietor does. A multi-member LLC, absent any elections, files a partnership return, Form 1065. If desired, a single-member or multi-member LLC can elect to be taxed as a corporation by filing IRS Form 8832, Entity Classification Election.
Another election that can be made by either an LLC, or a corporation, is the election to be taxed as an S Corporation. This is just a taxation election and doesn’t change the type of entity making the election. The election is made by filing Form 2553, Election by a Small Business Corporation. The title of this form is somewhat of a misnomer because it indicates that only a corporation can make the election. Not only can small corporations make the election, but so can LLC’s.
Dividends paid by an S corporation (normally called distributions when made by an S corporation) generally are not taxable to the recipients (unless there are basis issues), which avoids the double-taxation issue of C corporations. The net profits of an S corporation are not taxed at the corporate level, but instead are passed through to the owners, and are taxed on their individual returns, regardless of whether any distributions were made. And this net profit is not subject to self-employment tax (FICA taxes) as is Schedule C income and partnership income reported by an active individual. Not all of the S corporation’s profits can be taken as distributions however. The IRS requires owners who are active in the business to take a reasonable salary. The salary, of course, has FICA taxes withheld, and the company has to pay matching FICA taxes as with any employee.
According to Nellie Akalp, “To qualify for S-Corp status:
• The business must be a U.S. corporation or LLC
• It can maintain only one class of stock
• It’s limited to 100 shareholders or less
• Shareholders must be individuals, estates or certain qualified trusts
• Each shareholder must consent in writing to the S Corporation election
• Each shareholder must be a U.S. Citizen or permanent resident alien with a valid United States Social Security number
• The business must have a tax year ending on December 31”
The TCJA provided for a new deduction beginning in 2018 called the Qualified Business Income Deduction. This deduction is available for most types of “pass-through” business income and is limited to 20% of qualified business income provided certain qualifications are met. Because it is for “pass-through” income, C corporations do not get any benefit. Most other types of business income do qualify, such as sole-proprietors, partnerships, LLC’s and S corporations. So this is yet another consideration when deciding on the type of entity a business should be.
As you can see, there are several types of entities and quite a bit to consider when making the entity choice. Hopefully this article helps to give you some perspective.
Credit given to Nellie Akalp for the excerpts taken from her article “Why Small Businesses May Want to Consider Electing S Corp Status” published in the CPA Practice Advisor on October 10, 2019.
Thank you for all of your questions, comments and suggestions for future topics. As always, they are much appreciated. We may be reached in our Dayton office at 937-436-3133 or in our Xenia office at 937-372-3504. Or, visit our website.