The S-Corp or the New LLC?

Here are the pros and cons of the S-Corp and LLC to be considered when electing to incorporate your business

 

For those who have started a business or have their own business, the question has always been asked… should I have my company be setup as an S-Corp. or should it be setup as an LLC?

The question was usually followed by a serious of pros and cons of each structure. Of course, an S Corporation, in and of itself, is not an actual legal structure but a tax election that, previously, was designed for corporate structures and partnership entities such as the LLC.

The background behind this conversation deals with the benefits of both the S-Corporation and the LLC.

Tax benefits

The S-Corporation was an election made usually by a corporation taking advantage of certain tax benefits so long as certain pre-requisites/requirements were met and maintained. These mandates required all owners of the company to be US citizens and/or US permanent residents, limited to 100 shareholders, and maintaining one class of stock.

If these pre-requisites were met, corporations could take the election and avoid paying taxes on its corporate tax return (in many cases at the state level as well) and only paying income tax on the profits through the individual owner’s personal income tax return at individual income tax rates (usually more favorable).

Now, most know partnership entities like LLC’s do not pay partnership income taxes but do have to report their profits. The profits would also be subject to individual income tax rates since they would also need to be reported on the owner’s personal income tax return. However, LLC’s, like most limited partnerships, would also incur an additional self-employment of 15.3% for all owners who actively participated in the business.

Liability considerations

Regarding liability, both corporations and LLC’s offer limited liability protection to its owners (i.e., that is an owner’s liability is limited to the amount of money he/she has invested into the business). However, LLC’s generally provide protections for the company against its owners.

Therefore, if an owner were to engage in activity that led to him/her being liable and such liability would require an owner to pay out to satisfy the liability incurred (e.g., a lawsuit for causing a car accident), the creditors of such liability could try to collect from everything the owner owns to satisfy the liability. But, while these creditors could go after a great deal of the assets in the owner’s possession, they would not be able to take from the LLC’s assets. Such assets would be protected from the actions of the individual owner(s).

The protection also extends to the voting and managerial rights of the owner(s) (the creditors could seek to obtain the distributional interest of the owner(s)). Reason being, an interest in an LLC, like most limited partnerships, is not considered definable personal asset.

 

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About the author

Senen Garcia

Senen Garcia operates SG Law Group LLP a thriving law practice in multiple states assisting clients with their corporate, real estate, estate planning, and property insurance claim needs.  Additionally, Mr. Garcia has accounting practice assisting small businesses with tax and accounting needs.  Along with his work with SCORE, Mr. Garcia has also provided assistance with the local Small Claims Clinic that provides assistance to individuals filing small claims cases. Mr. Garcia has spoken on a variety of topics such as:  How to start a business, Communication within your organization, Importance of Capital Accounts, What’s in Business Name Anyway?, and Stock Purchase Agreements vs. Asset Purchase Agreements.

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