A common question that comes up in my practice is ‘What is an S Corporation?’ So I decided to write a blog entry answering this question. Here is my S Corporation overview. The post covers the taxation of S corporations and their shareholders.
- A single level of tax. The income of an S corporation is generally subject to just one level of tax, at the shareholder level. In other words, the income generally is taxed only to the corporation’s shareholders. In contrast, a C corporation pays tax on its earnings, and its shareholders pay a second tax when corporate earnings are distributed to them in the form of dividends.
- The availability of losses. Shareholders of an S corporation generally may deduct their share of the corporation’s net operating loss on their individual tax returns in the year the loss occurs. Losses of a C corporation, however, may offset only the corporation’s earnings. This pass-through of an S corporation’s losses to its shareholders makes the S corporation form particularly suitable for start-up businesses that are expected to generate losses during their initial stages.
- Income splitting. S corporations can serve as excellent vehicles for splitting income among family members through gifts or sales of stock.
- The exclusion for up to 100% of the gain on the sale of “qualified small business stock” does not apply to the sale of stock in an S corporation.
- Fewer tax-free fringe benefits may be provided to shareholder-employees of S corporations than to shareholder-employees of C corporations.
- Stock in an S corporation can only be transferred to eligible shareholders — individuals, estates, certain trusts, and certain pension plans and charitable organizations. An S corporation cannot have more than 100 shareholders, but married couples and other family members count as one shareholder. A nonresident alien may not be a shareholder. These limitations restrict the sources and amount of equity capital.
- An S corporation may not issued preferred stock, since such stock will constitute a prohibited second class of stock. This limitation also may restrict the sources and amount of equity capital.
- Estate planning for shareholders is generally more complicated when an S corporation is involved.
- Tax rates applicable to individuals may be higher than the rates that would apply to a C corporation at the same income level.
- Since 1997, employee stock ownership plans can be used, but some of their tax advantages are not available to S corporations.
The Internal Revenue Service has a program that will enable many employers to resolve past worker classification issues and achieve certainty under the tax law at a low cost by voluntarily reclassifying their workers.
This new program will allow employers the opportunity to get into compliance by making a minimal payment covering past payroll tax obligations rather than waiting for an IRS audit.
This is part of a larger “Fresh Start” initiative at the IRS to help taxpayers and businesses address their tax responsibilities.
The new Voluntary Classification Settlement Program (VCSP) is designed to increase tax compliance and reduce burden for employers by providing greater certainty for employers, workers and the government. Under the program, eligible employers can obtain substantial relief from federal payroll taxes they may have owed for the past, if they prospectively treat workers as employees (instead of independent contractors or nonemployees). The VCSP is available to many businesses, tax-exempt organizations and government entities that currently erroneously treat their workers or a class or group of workers as nonemployees or independent contractors, and now want to correctly treat these workers as employees.
To be eligible, an applicant must:
- Consistently have treated the workers in the past as nonemployees,
- Have filed all required Forms 1099 for the workers for the previous three years
- Not currently be under audit by the IRS
- Not currently be under audit by the Department of Labor or a state agency concerning the classification of these workers
Interested employers can apply for the program by filing Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before they want to begin treating the workers as employees.
Employers accepted into the program will pay an amount effectively equaling just over one percent of the wages paid to the reclassified workers for the past year. No interest or penalties will be due, and the employers will not be audited on payroll taxes related to these workers for prior years. Participating employers will, for the first three years under the program, be subject to a special six-year statute of limitations, rather than the usual three years that generally applies to payroll taxes.
Here is a video that was published by the IRS that discusses the program: http://www.youtube.com/watch?v=85dae9YuoJg&noredirect=1
If your company needs assistance or representation regarding this program, please contact Paul by clicking here.
Here are some of the more important tax developments that have come out during the first three months of 2012. Most are documents from the Internal Revenue Service, but some are important cases and legislative changes you might want to be aware of for you or your business.
If your corporation needs assistance making the election to be taxed as an S corporation contact Paul by clicking here.
Instead of figuring actual expenses, you can use the standard mileage rate of 51 cents per mile for travel during 2011. The standard mileage deduction is in lieu of deducting operating and fixed costs of the automobile. Depreciation is a component of the standard mileage rate, therefore, the basis in the automobile must be reduced by the depreciation allowed. However, if you use the standard mileage deduction, you can still deduct parking fees, tolls, interest relating to the automobile’s purchase, and state and local taxes. Up to four cars used simultaneously can be computed using the standard mileage rate.
If you want to use the standard mileage rate for a car in any year, you must choose to use it in the first year you place the car in service in your business. After the first year you can switch to deducting actual expenses.
If you choose to deduct actual expenses, you can deduct such items as oil, gas, insurance, depreciation, etc. However, there are special rules that apply if you use your car 50% or less in your business. Generally, you must use a car more than 50% for business to qualify for the §179 deduction (election to treat a portion of the cost of the car as an expense-see below) and there is a limit on the depreciation deduction. Using your car as an employee is treated as business use only if that use is for the convenience of your employer and required as a condition of your employment.
Generally, the cost of an automobile is a capital expenditure; however, if you use the automobile more than 50% for business purposes, you can elect to treat a portion of the cost, subject to yearly limits, as an expense in the year the automobile is placed in service. The yearly limit allowed is determined by the year the automobile is placed in service and the percentage of business use. A special rule for 2008, 2009, and 2010 allows an additional 50% first-year depreciation deduction and an $8,000 increase to the annual limitation amount.
For example, if an automobile is placed in service in 2010, the expense deduction and the depreciation deduction cannot be more than $11,060 for the first year (the placed-in-service year); $4,900 for the second year; $2,950 for the third year, and $1,775 for any year thereafter. This limit is reduced if the taxpayer uses the automobile more than 50%, but less than 100%, for business use.
If you have not yet set up a qualified retirement plan, it may now be more worthwhile to explore doing so. Please click here to contact Paul to discuss this further.
As you can see, the Act covers many, but not all, of the various proposed tax provisions important to the business community. Please contact me so that I can review your particular circumstances in order to maximize your tax benefits for 2010, as well as plan for 2011, and beyond.