Using an LLC or S Corp

Starting a new business is an exciting, and maybe slightly terrifying, event.  It all starts with an idea that develops into a business plan, and then hopefully moves onto careful financial and legal considerations. Among the decisions that new business owners will contemplate is the legal form that their business will adopt.  Most often, they are debating between forming a limited liability company taxed as a partnership (LLC) or a corporation making an S election (S corp).* There are similarities and differences between LLCs and S corps that business owners should understand before choosing between the two.

Similarities of an LLC and S Corp

For the sake of simplicity, this brief overview is based on the assumption that (i) any reference to “LLC” is to an LLC taxed as a partnership, and (ii) any reference to “S corp” is to a corporation taxed as an S corporation. These entities are easily confused, in part because an LLC can make an S election. In that case, you have a state law LLC taxed as an S corporation under federal law. Why would anyone choose to do that? In many cases, it is the business owner’s desire to avoid strict state law corporate compliance coupled with the desire for favorable S corp taxation.

Both the LLC and the S Corp are created by filing the necessary paperwork with the state. Unlike a sole proprietorship or a general partnership, an LLC or a corporation are not recognized under state law until the necessary filings have been made with the Secretary of State. In addition to state filings required to form the corporation, a filing on IRS Form 2553 is required for the state-law corporation to elect S status for federal tax purposes.

These two entities also offer owners and investors limited liability, meaning the owner’s or investor’s personal assets are protected from the business’ creditors’ claims.  Assuming an LLC does not make an election to be taxed as a corporation, both an LLC and S corp are pass-through tax entities, allowing business profits and losses to flow through and be reported on the owners’ personal tax returns.

Differences Between the LLC and S Corp

Unlike LLC’s, which can have an unlimited number and type of owners, S corps are subject to strict ownership rules. S corps can have no more than 100 shareholders, may not have non-U.S. citizens as shareholders, and cannot be owned by corporations, LLC’s, partnerships, or many types of trusts.  As opposed to LLC’s, which have flexibility in structuring the economic arrangement among its owners, S corps cannot issue classes of stock with different economic rights. However, an S corp can issue voting and non-voting classes of stock. S corps are subject to mandatory requirements as to how the entity is managed. For example, S corps are often required to adopt bylaws, issue stock, hold regular meetings, and maintain meeting minutes within its corporate records. LLCs, on the other hand, are not subject to these types of requirements.

Owners of S corps, unlike LLCs, may be able to reduce or eliminate the need to pay self-employment tax.  An S corp owner can be treated as an employee and paid a reasonable salary.  Employment taxes are withheld from the reasonable salary, while corporate earnings in excess of that salary may be distributed to the owners as unearned income, free of self-employment tax.  S corp owners must share profits equally based on their percentage of ownership, while LLC owners have wide latitude to split profits and losses in any manner that is agreed upon.  LLC’s are generally cheaper to form and operate.  S corps generally provide enhanced asset protection, as the structure creates more separation between the owners and the company.

Each business has its own set of circumstance to consider. Do not go it alone! We are here to discuss how to properly structure, form, and protect your business. Please give us a call to schedule a consultation today.