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WY Biz Tip - Your LLC Could Also Be an S Corp

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May 13, 2019
Your LLC could be an S Corp
By Cindy Unger, Business Advisor
Wyoming Small Business Development Center Network
 
You had no clue that one business could actually be both an LLC and an S Corp, did you?  Let me explain further . . .  
A Limited Liability Company (LLC) is a legal entity formed under state law to operate a business.  This form of organization is easy and inexpensive to create and operate and provides the personal liability protection of a corporation, coupled with the tax efficiencies and operational flexibility of a sole proprietorship or partnership.  A single person limited liability company will automatically be treated by the IRS as a “disregarded entity,” i.e. a sole proprietorship.  An LLC with two or more members will automatically be treated as a partnership and be taxed under Subchapter K of the Internal Revenue Code.  Most LLCs automatically stay with their default form of taxation, but there are alternatives that may be advantageous, depending on your particular business situation. 
The member (owner/partner) of an LLC is not an “employee” of the LLC for tax purposes and does not receive a paycheck with payroll taxes deducted and Social Security and Medicare taxes partially paid by the company.  The member takes his/her salary out as a “draw.”  They write themselves a full paycheck, with no deductions.  That member is now responsible for paying Estimated Taxes to the IRS on a quarterly basis, consisting of estimated income tax, plus 100% of Social Security (12.4% up to earnings of $132,000) and Medicare taxes (2.9%, except for high earning individuals). 
This situation is not a bad as it appears.  Instead of your employer calculating social security contributions on the basis of 100% of your salary, as a self-employed individual, you only pay on 92.35% of net profit.  In addition, half of the Social Security tax you paid is considered as the employer’s matching portion of the tax and is a deductible business expense.  The “catch” is that, if there is profit left in the LLC business bank account at the end of the fiscal year, those funds are no different from money that you have already drawn personally from the business.  As a member/owner, you will be required to pay income tax, Social Security and Medicare taxes on those funds. 
An ”S Corporation” (S Corp) is not a legal entity formed at the state level.  An S Corp is a “tax entity,” created through an election with the IRS.  Your business will be legally organized at the state level as either an LLC or a C Corporation.  For tax purposes; however, you must file a special form (2553) with the IRS requesting S Corp status.  Like an LLC, the S Corp is a “pass through” tax entity, not subject to double taxation like a C Corp.  Any income, losses, credit or deductions will flow through to the owners (shareholders) and be reported and paid for on their personal tax return.  There are certain restrictions of who can own an S Corp, but most small businesses will qualify. 
An active S Corp owner who performs more than minor services for the company wears two hats.  He/she is both a shareholder and an employee of the business.  As an employee, the owner must be compensated for his/her services with a reasonable wage for that position and receive any other employee compensation the corporation typically provides.  The company will pay one half of his/her Social Security and Medicare obligations.  As a “shareholder” any profits remaining in the company at the end of the year can be distributed to the owners as a dividend, and dividends are not subject to employment taxes. 
Be aware that, as an S Corp, you will have to run payroll, file quarterly federal payroll returns, keep accurate books and a balance sheet, be responsible for paying state and federal unemployment insurance and state workers’ comp, and file a corporate tax return. 
Why elect tax status for your LLC, as opposed to simply filing as a corporation and electing S Corp status?  An S Corp typically has greater regulation of company procedures than an LLC.  They probably will be responsible for holding required meetings and keep minutes, create and follow by-laws, deal with stock transfers, etc.  Also, voting rights in an S Corp must match financial contributions.  An LLC has fewer formalities, can have unlimited members, and voting rights can be decided through your operating agreement.  You can have the advantages of the simplicity and ease of operation of an LLC, combined with the tax advantages of an S corp.  If a start-up has employees or plans to hire employees within the first year of operation and has the expectation of large profits, I typically recommend the LLC/S Corp organization.  An LLC must request S Corp status by filing IRS Form 2253 within the first 2 months and 15 days of the tax year in which the election is to take effect.  There are some exceptions, but timely filing will eliminate problems. 
Contact your tax advisor and/or attorney for additional information about LLCs and S Corps, as there are numerous additional details that are beyond the scope of this article. 
 
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About the Wyoming SBDC Network: The Wyoming SBDC Network offers a large amount of business expertise to help Wyoming residents think about, launch, grow, reinvent or exit their business. The Wyoming SBDC Network is hosted by the University of Wyoming with state funds from the Wyoming Business Council. Funded in part through a Cooperative Agreement with the U.S. Small Business Administration.
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