What is an S Corp Election?

What is an S Corp Election?
January 22, 2020 Janet Berry-Johnson
In Small Business, Tax Tips

Spend any time reading about tax-saving strategies or talking to small business advisers, and you’re bound to hear about S Corp elections. S Corp elections can indeed save tax dollars, but they’re not for everyone. Read on to learn more about what an S Corp election is and when it might be a good idea for your small business.

What is an S Corp election?

Before you can understand S Corp elections, you need to know about Limited Liability Companies (LLCs).

The LLC is one of the most popular legal structures for small businesses. It’s easy to see why, since LLCs offer many of the legal protections available to corporations, but with less paperwork and fees. Plus, there is a lot of flexibility when it comes to how an LLC is taxed.

  • A single-member LLC (meaning it has only one owner or member) is taxed like a sole proprietorship. It reports income and expenses of the business on Schedule C attached to the owner’s individual tax return, Form 1040.

  • LLCs with more than one owner or member can be taxed like a partnership, and file Form 1065.

  • Any LLC (provided it meets certain requirements) can elect to be taxed like an S Corp, and file a return using Form 1120-S.

When an LLC elects to be treated as an S Corp for tax purposes, that is known as an S Corp election.

Who can elect S Corporation status?

As I mentioned above, there are a few requirements an LLC must meet to elect S Corp status. They are as follows:

  • Be a domestic LLC or corporation (i.e., it is organized and doing business in the U.S.)

  • Have shareholders who are individuals, certain trusts and estates. Partnerships, corporations and non-resident aliens cannot be shareholders of an S Corp.

  • Have no more than 100 shareholders

  • Have only one class of stock

  • Not be an ineligible corporation. Certain types of businesses, such as financial institutions and insurance companies, cannot be structured as an S Corporation.

What are the benefits of making an S Corp election?

Electing S Corp status can save taxes in some cases. To understand how, we have to go back to LLCs again.

LLCs are known as pass-through entities. This means the business does not pay federal income taxes on its profits. Instead, those profits are “passed through” to owners, who pay taxes on any business profits on their individual tax returns.

Owners or members of an LLC don’t receive a paycheck from the business. Instead, they take distributions of business profits. But whether or not the owner takes money out of the company, they are taxed on their share of business profits. That tax consists of two parts: income taxes and self-employment taxes.

If you’re new to being a business owner, you may not be familiar with self-employment taxes. Self-employment taxes are Social Security and Medicare taxes for self-employed taxpayers. If you’ve ever collected a paycheck, you likely looked at your pay stub or W-2 and noticed Social Security and Medicare withholding, also known as FICA taxes.

When you’re self-employed, you don’t have an employer to withhold those taxes. Instead, you’re responsible for paying them on your own. That’s self-employment tax.

Currently, the self-employment tax rate is 15.3%. That includes 12.4% for Social Security and 2.9% for Medicare. However, there’s a cap on the amount of your earnings subject to the Social Security portion of SE tax. For 2019, that cap is $132,900.

To illustrate, say your net income from self-employment is $140,000. Now, you get a little break because your self-employment income subject to SE tax is 92.35% of your net SE income. That means you’d be taxed on $129,290 – under the cap of $132,900 for Social Security.

So for 2019, your self-employment tax would be:

  • $16,032 for Social Security (that’s 12.4% of $129,290), plus

  • $3,749 for Medicare

For a total of $19,781. Yikes, right? And remember, that’s in addition to your federal (and possibly state) income taxes!

OK, bear with me, because I know we’re deep into the tax geek weeds. But we’re coming up on the good stuff.

If you make an S Corp election, you can significantly reduce the amount of self-employment taxes you’ll pay. Instead of having your entire $140,000 subject to SE tax, you’ll pay yourself a salary, and only your salary will be subject to SE tax.

To compare, let’s say you make an S Corp election and decide to pay yourself a salary of $50,000.

Now, Social Security and Medicare are only calculated on that $50,000 of wages rather than 92.35% of $140,000.

  • $3,100 for Social Security (6.2% of $50,000)

  • $725 for Medicare (1.45% of $50,000)

If you’ve been paying attention, you’ll notice that the percentages are lower. That’s because, as an employee of your S Corp, you’re only responsible for paying half of the Social Security and Medicare taxes. The business pays the other half. Of course, that still means the S Corp will have to pay the other $3,825 of FICA taxes, but now it’s a deductible business expense.

Should I make an S Corp election?

Looking at these numbers, it might seem as though everyone should be an S Corp, right? Not so fast. It’s not for everyone. There are some downsides to S Corps:

  • They’re more time-consuming and expensive to set up

  • Maintaining your S Corp requires additional reporting and costs, including annual fees to your state

  • S Corporations require a separate tax return, so you may have to pay additional tax prep fees

  • You’ll likely need to use a payroll service, such as Gusto, to issue paychecks, withhold taxes, and prepare W-2s. That involves a monthly fee.

  • You must have the cash flow to make regular payroll runs, pay payroll taxes and payroll service fees

There’s no hard and fast rule about who should make an S Corp election. However, if you make less than $40,000 in net profit from your business annually, the costs of setting up and maintaining your S Corp will outweigh the tax benefits.

How do I get the rest of my business profits?

Right now, you might be thinking, “I didn’t go into business to live on a $50,000 salary! How do I get the rest of my business’ profits? Those are still yours, and you’ll still pay federal (and perhaps state – depending on where you live) income taxes on them. But instead of taking them as wages, you’ll take them as distributions.

Let’s go back to our example of your $140,000 net profit business where you pay yourself a $50,000 salary. If you pay yourself bi-weekly, that’s roughly $1,923 gross wages before taxes. So let’s say you want to pay yourself an extra $2,000 per month. You can simply transfer that amount from your business checking account to your personal checking account once a month. In your accounting software, you’ll classify that $2,000 as a dividend (also known as a draw or distribution).

An S Corp is still a pass-through entity, so you’ll receive a K-1 with your share of the business’ profits and pay income taxes on those profits. But rather than paying self-employment taxes on the full $140,000, you’ll only pay FICA taxes on your $50,000 of wages.

What else do I need to know about making an S Corp election?

I’m glad you asked! Because we need to talk about another tricky subject: reasonable compensation.

In the example above, we had you pay yourself a salary of $50,000. Why not a salary of $15,000 and distributions of $59,000? That would really result in some tax savings, right? Well, that would be great until the IRS came calling and reclassified some of those distributions as salary, charging you back FICA taxes, penalties and interest in the process.

S Corp owners are required to pay themselves a “reasonable salary.” And the IRS has a long history of auditing S Corp tax returns to ensure S Corp shareholders comply with this requirement. The tricky part is, the IRS doesn’t have a hard-and-fast rule for what is a reasonable salary. Instead, they consider several factors:

  • Training and experience

  • Duties and responsibilities

  • Time and effort devoted to the business

  • Dividend history

  • Payments to non-shareholder employees

  • Timing and manner of paying bonuses to key people

  • What comparable companies pay for similar services

  • Compensation agreements

  • The use of a formula to determine compensation

So when deciding what a “reasonable salary” is for your business, here are some ideas to consider:

  1. How specialized is your experience? A highly trained S Corp owner would receive a higher salary than a lesser-skilled position.

  2. How much time and effort do you put into the business? If the company can’t run without your efforts, you should take a higher salary. If the business could continue running just fine without your involvement, your salary can be lower.

  3. What would a non-owner employee receive for the same work? If you have other employees, what are you paying them? Many accountants have got in trouble for paying themselves a lower salary than they pay their admin staff.

How to make an S Corp election

If you haven’t yet set up a business or are currently operating as a sole proprietor, you can establish your business as an S Corp from the beginning. However, if your business is currently structured as an LLC, you make an S Corp election by filing IRS Form 2553, Election by a Small Business Corporation.

The form is relatively simple to complete as long as:

  • You intend to operate on a calendar year (rather than a fiscal year), and

  • You don’t make the election more than two months and 15 days after the beginning of the tax year.

If either of those scenarios apply to you, I highly recommend working with an accountant or tax attorney to complete the form. Otherwise, follow the Instructions for Form 2553.

If possible, have your S Corp election take effect on January 1st. That way, you won’t have to worry about allocating your income for the year to Schedule C (or Form 1065) before the election and Form 1120-S after the election.

Once you file the election and the IRS accepts it, make sure you set up payroll and pay yourself a reasonable salary. And remember to file your S Corp tax return by March 15th! If you need more time, you can request a 6-month extension. However, you won’t be able to file your individual tax return until you’ve filed Form 1120-S. You’ll need the K-1 reporting your share of the S Corp’s income and expenses.

Bottom line

It’s complicated to decide whether an S Corp election is right for you and file an S Corp tax return. Unless you have experience dealing with tax issues or really feel comfortable following IRS instructions, I highly recommend getting help from a tax professional or attorney.

An S Corp election can provide considerable tax savings. Just remember, there’s no one-size-fits-all rule for when an S Corp election is the right move. It’s just about what’s best for your business.

Do you think an S Corp election is right for you? Are you confident you can handle it on your own? Or will you get professional help?