How to Start an S Corp in 11 Steps

What is an S Corporation?

An S Corporation, often shortened to S Corp, is a distinct form of business entity that combines the legal protection of a corporation with the tax benefits similar to a partnership. Essentially, it's a domestic corporation that elects to pass corporate income, losses, deductions, and credits through to their shareholders for federal tax purposes. This unique business structure allows shareholders to report the flow-through of income and losses on their personal income tax returns, thus avoiding the double taxation typically seen in traditional corporations.

Key features of an S Corp include limited liability for its shareholders, meaning their personal assets are protected, and the ability to have only one class of stock. While this structure shares some similarities with a Limited Liability Company (LLC), it's governed by specific eligibility criteria set by the Internal Revenue Service (IRS). The choice to become an S Corp is an election made with the IRS and offers specific tax advantages, primarily the avoidance of the corporate income tax that is levied on traditional corporations (C Corporations).

Designed for small to medium-sized businesses, the S Corp status provides a legal framework for entrepreneurs who seek the structure of a corporation but with a pass-through taxation model. It's an appealing option for those looking to maximize tax benefits while maintaining a formal business structure.

Advantages of S Corp Status

Opting for S Corp status brings several advantages, especially for small businesses and entrepreneurs. One of the key benefits is pass-through taxation. Unlike C Corporations, S Corps are not subject to corporate income tax. Instead, profits and losses are passed through to the shareholders, who report them on their personal income tax returns. This structure helps avoid the double taxation common in traditional corporations, where both the corporate income and the shareholders’ dividends are taxed.

Another significant advantage is the potential for self-employment tax savings. Since S Corp shareholders can be employees and draw salaries, only their salary is subject to self-employment taxes. The remaining income, distributed as dividends, is not subject to these taxes, leading to considerable tax savings.

S Corps also offer the benefit of limited liability protection. Shareholders’ personal assets are generally protected from the corporation's liabilities and debts. This protection is similar to that of a Limited Liability Company (LLC) but within a more formal corporate structure.

Additionally, S Corps have a distinct corporate status that can enhance credibility with potential investors, financial institutions, and customers. They can have only one class of stock, but unlike C Corps, they are limited to a maximum of 100 shareholders, all of whom must be U.S. citizens or residents. This restriction can be beneficial for small businesses looking for a close-knit group of investors or owners.

The S Corp election also leads to a more defined business structure, which can be advantageous for business planning and operations. With the requirement to follow certain corporate formalities such as holding regular meetings and maintaining corporate minutes, S Corps often have a more organized and professional framework.

Disadvantages of S Corp Status

While S Corporation status offers many benefits, there are also some disadvantages to consider. One of the primary drawbacks is the stringent eligibility requirements set by the Internal Revenue Service (IRS). These requirements include limits on the number and type of shareholders, with a maximum of 100 shareholders who must be U.S. citizens or residents. This limitation can restrict a business's growth potential and its ability to attract a diverse range of investors.

Another challenge is the need for rigorous adherence to corporate formalities and procedures. S Corps must maintain meticulous records, hold regular meetings, and comply with all corporate governance standards. This requirement can be burdensome for small business owners who prefer a more flexible and less formal business structure.

In terms of taxation, while S Corps do avoid double taxation, they are still subject to strict compensation requirements for shareholder-employees. The IRS closely scrutinizes the salaries paid to shareholder-employees to ensure they are reasonable and not an attempt to evade payroll taxes. This scrutiny can create an additional administrative burden and the need for careful tax planning with a professional.

Furthermore, S Corps can only issue one class of stock, which may limit the corporation's ability to raise capital. This restriction can be a significant disadvantage compared to C Corporations, which can issue multiple classes of stock with different voting and dividend rights.

Additionally, certain business entities, like financial institutions and insurance companies, may be ineligible for S Corp status, limiting the structure's applicability across different industries.

Finally, converting to an S Corp can also bring tax implications. If a business switches from a C Corp to an S Corp, it may face tax consequences on appreciated assets and must navigate complex tax regulations during the transition.

S Corp Requirements

To qualify as an S Corporation, businesses must adhere to specific requirements set by the Internal Revenue Service (IRS). These criteria ensure that the company is eligible for the unique tax status and benefits that come with being an S Corp. Here’s a concise overview:

• Domestic Entity: The corporation must be a domestic corporation, established and operating within the United States.
• Shareholder Limitations: S Corps are limited to 100 shareholders. These shareholders must be individuals, certain trusts, or estates. Importantly, they must also be U.S. citizens or resident aliens.
• Only One Class of Stock: The corporation can only have one class of stock. While there can be differences in voting rights, all shares must have identical rights to distribution and liquidation proceeds.
• Ineligible Corporations: Some business types, such as certain financial institutions, insurance companies, and domestic international sales corporations, cannot elect S Corp status.
• Tax Status Election: The corporation must elect to be treated as an S Corp with the IRS using Form 2553, “Election by a Small Business Corporation,” signed by all the shareholders.
• Tax Year Considerations: Generally, S Corps must adopt a calendar year as their tax year unless they can establish a business purpose for a different fiscal year.
• Consent of Shareholders: All shareholders must agree to the S Corp election.
• Compliance with Corporate Formalities: Similar to C Corporations, S Corps are required to follow corporate formalities such as holding regular meetings and keeping minutes.

These requirements are designed to maintain the integrity of the S Corp status and ensure that the tax benefits are appropriately applied to qualifying small business corporations.

How to Start an S Corp

Starting an S Corporation involves a series of steps to ensure compliance with legal requirements and to take advantage of the tax status and benefits offered. Here's a straightforward guide to help you through the process:

1. Choose a Business Name: Select a unique name for your S Corp, ensuring it complies with state regulations.
2. File Articles of Incorporation: Submit these legal documents to your state's Secretary of State office. This step officially creates your corporation.
3. Obtain a Federal Employer ID Number (EIN): Apply for an EIN from the IRS. It's essential for tax purposes, much like a Social Security number for your business.
4. Elect S Corp Status with the IRS: File IRS Form 2553, "Election by a Small Business Corporation," signed by all shareholders. This must be done no more than two months and 15 days after the beginning of the tax year when the election is to take effect.
5. Appoint a Registered Agent: Designate a registered agent who will be responsible for receiving legal documents on behalf of the corporation.
6. Create and Adopt Corporate Bylaws: Draft bylaws that govern the internal management of your corporation, including the process for electing directors, conducting meetings, and shareholder rights.
7. Issue Stock Certificates to Shareholders: Even though an S Corp can only have one class of stock, it's important to formally issue stock to your shareholders.
8. Set Up a Business Bank Account: Open a bank account specifically for your S Corp to keep your business and personal finances separate.
9. Comply with Other Tax and Regulatory Requirements: This may include obtaining business licenses and permits, paying employment taxes, and adhering to local and state tax obligations.
10. Hold Initial Board of Directors Meeting: Record minutes of this meeting, covering topics such as the adoption of bylaws and the appointment of corporate officers.
11. Maintain Ongoing Compliance: Ensure ongoing compliance with federal, state, and local regulations, including filing annual reports and holding annual shareholder meetings.

Starting an S Corp is a multi-step process that requires attention to detail and often the guidance of a tax professional, especially when it comes to complex tax matters and understanding the nuances of s corp tax status and pass-through taxation.