Start Off on the Right Foot
o Qualified Small Business Stock
o Section 1244 Election
Limited Liability Company
When you are starting a business there are several possible business entity types that need be considered to make sure you get started off on the right foot and avoid costly mistakes that must be corrected later or those that must be changed later to maximize tax benefits. One also needs to be concerned about potential personal liability.
Each business entity choice has its own pros and cons; the following is an overview of each possible business structure.
Sole Proprietor – This is generally the most basic business entity. It is a single owner entity, and for tax purposes the owner reports the business’ income and expenses as part of their individual tax return, using the 1040 Schedule C. This is simpler than for other business entities where income and expenses must be reported on a separately filed business return. However, that does not mean a sole proprietor cannot have employees and retirement plans like other business entities and qualify for some of the same tax credits and business deductions available to other business entities. The sole proprietor pays income taxes on any net profit from the business, as well as self-employment tax (Social Security and Medicare taxes).
Partnership - A partnership is a business entity with two or more owners with equal or different ownership interests in the business. The net profit or loss from such an entity is computed on Form 1065, and the profit or loss and other tax attributes are passed through to the partners on Schedule 1065 K-1 and included on their individual 1040 returns. Like a sole proprietor except the net profit and loss is determined at the partnership level and each partner’s proportionate share is passed through to them via the K-1. The major difference being a partnership agreement is required to establish business policies and how partnership funds are spent. Partners are also personally responsible for all the liabilities incurred by any of the partners. Partners who perform work for the partnership are not considered employees, and therefore, will be responsible for paying income and self-employment taxes on their share of the profits.
Joint Venture - Occasionally, a married couple may be in business together. Spouses who file a joint return may elect out of the partnership rules. Thus, when the election is made, a joint venture between them is not treated as a partnership for tax purposes. All items of income, gain, loss, deduction, and credit are divided between the spouses according to their respective interests in the venture, and each spouse considers their respective share of these items as if they were attributable to a trade or business conducted by the spouse as a sole proprietor. Accordingly, each electing spouse will report their shares on Schedule C.
This rule does not apply to spouses who operate in the name of a state law entity (including a general or limited partnership or a limited liability company). The election can be made only for a business operated by spouses as co-owners that is, or should otherwise be, taxed as a partnership (whether there is a formal partnership). Both spouses must materially participate in the trade or business.
C-Corporation -A c-corporation is a legal entity that is separate and distinct from its owners. Under the law, corporations possess many of the same rights and responsibilities as individuals. They can enter contracts, loan and borrow money, sue and be sued, hire employees, and own assets. Domestic corporations in existence for any part of a tax year must file a federal income tax return – generally Form 1120 – even if they do not have taxable income. Unlike some other business entities corporations pay taxes on their profits. Shareholders profit through dividends and stock appreciation but are not personally liable for the company's debts. This can result in double taxation since dividends paid are not deductible by the corporation, thus taxable at the corporate level and taxable to the shareholder. Shareholders who perform work for the corporation are considered employees.
o Qualified Small Business Stock - One big benefit for smaller C-corporations is the ability for shareholders to exclude up to $10 million from the sale of stock that meets a five-year holding period and the definition of a qualified small business stock.
o Section 1244 Election - C-corporations can also make what is called a Sec. 1244 election which allows an ordinary loss (Form 4797) on the sale of stock from a domestic corporation of up to $50,000 annually ($100,000 on a joint return, even if the stock is only owned by one of the spouses), even though the loss would otherwise be treated as a capital loss. Gains still qualify as capital gains. There are several requirements to qualify for this treatment one of which is the stock must be purchased from the corporation.
S Corporation – An S corporation is a corporation that makes an election to pass corporate income, losses, deductions, and credits through to their shareholders for federal tax purposes thus avoiding the double taxation issue discussed previously. Form 1120-S is the federal tax return required to be filed by S corporations, and Schedule 1120-S K-1 is used to report each shareholder’s portion of the income/loss, deductions, and credits. Just because an S corporation is a pass-through entity, it does not mean the income can all be passed through to a working shareholder and escape payroll taxes. Working shareholders are required to take reasonable compensation which is reported on Form W-2 (wages).
o S-Election - The election by a corporation or other entity eligible to be treated as a corporation, must be made no more than 2 months and 15 days after the beginning of the tax year for which the election is to take effect, or at any time during the tax year preceding the tax year it is to take effect. If the election was not made within the 2 months and 15 days prescribed to make the election, then a late election is available if certain conditions are met.
Limited Liability Company (LLC) – A Limited Liability Company (LLC) is a form of state business entity. The IRS did not create a new tax classification for the LLC when LLCs were created by the states; instead, IRS uses existing tax entity classifications: C or S corporation, partnership, or sole proprietor (the latter also being termed a disregarded entity). For federal purposes an LLC is always classified by the IRS as one of these types of entities. Regulation of LLCs varies from state to state. The profits, losses, and tax credits from an LLC are passed through to its members (LLC owners are called members, not shareholders), who report them on their individual tax returns. As the name implies, an LLC provides the same liability protection to its members as a corporation does to its shareholders.
While you might be tempted to determine the right business entity on your own, we strongly encourage you to consult with this office and your legal counsel. The foregoing is only an overview of the possible entity selection and there are a considerable number of issues to consider.
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