top of page

S-Corp Election for LLC

Updated: Jun 16, 2023

An LLC's owners (members) are taxed by the IRS, instead of the LLC being taxed itself. But the LLC members can change how the IRS taxes them and instead opt for S-Corporation taxation status in an attempt to seek lower taxes. This post will explain what the S-Corp election for tax purposes means and how it can impact a small business.


LLC members pay income tax and self-employment tax on any profits from the LLC. But if the LLC makes the S-Corp election, the company can provide non-wage distributions of profits and losses to the members. These non-wage distributions are not subject to the self-employment tax. Additionally, any members who do work on behalf of the company are paid salaries separate from, and in addition to, their non-wage distributions. These salaries are taxed as normal W-2 income (which includes employment taxes paid by the company and the employee). The employment taxes would only apply to these salaries, not the non-wage distributions. This can result in lower tax liabilities in certain circumstances.

For example, if a single-member LLC makes $100,000 profit in a taxable year and does not take the S-Corp election, the member will pay ordinary income tax and self-employment tax on any profit the LLC makes during a taxable year. However, if the LLC takes the S-Corp election, the member will not pay self-employment taxes on the portion of the $100,000 paid to himself/herself/themselves as a non-wage distributions.


This can further reduce taxes owed if there is a multi-member LLC, but not every member does work on behalf of the company--they are just passive owners. These members could potentially save a lot on taxes by having the LLC take the S-Corp election.


However, putting this into practice without falling into the severe audit bin is a bit trickier. LLC members must pay themselves a "reasonable compensation" for services they provide to the company. They cannot just pay themselves non-wage distributions and no salary. Furthermore, the IRS does not have a specific rule determining what counts as reasonable compensation. Instead, they use a few different guideposts to measure whether the compensation is reasonable.


One important data point the IRS will look to in determining whether the compensation is reasonable is the company's gross receipts. This analysis includes considering the following:

  1. Services of shareholder

  2. Services of non-shareholder employees or

  3. Capital and equipment

The IRS is looking at these factors to see how much work the member puts into the company in relation to gross receipts. The more gross receipts that come from the member's services, the more the member has to pay himself/herself/themselves in compensation.


Additionally, the IRS looks to administrative work the member does at the company. Although the member's work might not directly create gross receipts, the work is still tangentially important to the company’s revenue.


Additional factors the IRS uses to determine what is reasonable compensation:

  • 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 businesses pay for similar services

  • Compensation agreements

  • The use of a formula to determine compensation

In going forward with a S-Corp election, it is important to review all the information carefully and create a well reasoned salary. It is a serious decision and should not be made without seeking the advice of legal counsel and an accountant.


The information provided on my blog is not legal advice and should not be relied on as legal advice. Anyone reviewing this post should use it as only a first step in understanding how the S-Corp election works. LLC members should consult with a lawyer before making any decisions.


Helpful Links:

39 views

Recent Posts

See All

Nonprofit Law Institute Panelist

It was so rewarding participating in the Nonprofit Law Institute yesterday and meeting others in the nonprofit law community. Thank you Communities Rise for putting together a great event and asking m

Comments


Commenting has been turned off.
bottom of page