The Main Points on the difference between S, and LLC Corp. Forms
Posted by Danny on March 30, 2012 ·
LLC vs S-corp draft
Memorandum
Client File
Emilio T. Escandon, CPA
Alicia Koross, CPA
Brian A. Schlang, CPA
Richard C. Jung, Esq.
March 27, 2012
S corporation vs. Limited Liability Company
The purpose of this memorandum is to summarize the facts and the tax law in order to
determine the advantages and disadvantages of S corporations (hereinafter “S corps”)
and Limited Liability Companies (hereinafter “LLCs”).
This memorandum is a summary discussion that forms the basis for tax treatment of S corps
and LLCs on substantial authority of both the Internal Revenue Code of 1986 (hereinafter
“IRC” or “Code”) and tax law cases. It is limited to the described facts and may not contain a
full description of all the facts or a complete exposition and analysis of all relevant tax
authorities. The conclusions and recommendations contained in this memorandum are
based on our understanding of the facts, assumptions, information, and documents
referenced herein and current tax laws and published tax authorities in effect as of the date
of this memorandum, which are subject to change.
incorrect or change or the tax laws change, the conclusions and recommendations would
likewise be subject to change. Morrison, Brown, Argiz & Farra, LLC assumes no obligation
to update the memorandum for any future changes in tax law, regulations, or other
interpretations and does not intend to do so.
references are to the Code or the regulations thereunder, both as amended through the date
of this memorandum.
This memorandum is not binding on the Internal Revenue Service (“IRS” or the “Service”) or
the courts and should not be considered a representation, warranty, or guarantee that the
IRS or the courts will concur with our conclusions. Only the specific issues described herein
are covered by this memorandum; no other federal, state, or local laws of any kind were
considered and are beyond the scope of this memorandum.
1. What are the advantages of an S corp?
2. What are the disadvantages of an S corp?
3. What are the advantages of an LLC?
4. What are the disadvantages of an LLC?
Discussion of Law
Both LLCs and S corps are considered pass-through entities. Typically, in pass-
through entities, business owners (shareholders, members, or partners) avoid the
double taxation that C corporation shareholders face when corporate earnings are taxed
at both the corporate and shareholder levels. Also, certain states, such as Florida, do
not have an individual income tax. In those states an LLC or S corp would be even more
advantageous as the C corporation may owe a state income tax. Florida charges a
$125 filing fee for new LLCs to file Articles of Organization and Designation of
Registered Agent. For S corps the filing fee is $35, along with an additional $35 to
designate a registered agent. The taxable profits or losses from an LLC or S corp are
listed on Schedule K-1 and pass directly through to the owners. As an additional benefit,
corporate or LLC status creates a shield which insulates the owners from liability for
most company obligations. In effect, LLC or S status allows business owners to enjoy
the benefits of both the corporate and partnership forms, without the drawbacks
IRC § 1361(b)(1)(A) states that a small business corporation is a domestic
corporation “which does not have more than 100 shareholders,” although there is an
exception that states lineal descendants within six generations may be treated as one
IRC § 1361(b)(1)(B) states that C corporations, partnerships, and multi member
LLCs also cannot be shareholders. Most trusts are also prohibited from owning stock in
an S corp with the exception of Electing Small Business Trusts and Qualified
Subchapter S Trusts.
IRC § 1361(b)(1)(C) states that individuals must be United States citizens or
permanent residents of the United States in order to hold shares in an S corp.
Under IRC § 1361(b)(1)(D) S corps are only allowed one class of stock, although
their common stock is allowed to have different voting rights.
IRC § 704(b) states “a partner’s distributive share of income, gain, loss,
deduction, or credit (or item thereof) shall be determined in accordance with the
partner’s interest in the partnership (determined by taking into account all facts and
circumstances), if the partnership
distributive share of income, gain, loss, deduction, or credit (or item thereof), or the
allocation to a partner under the agreement of income, gain, loss, deduction, or credit
(or item thereof) does not have substantial economic effect.” This allows an LLC to
specially allocate income, gain, loss, deduction, credit and distributions as long as the
allocation has substantial economic effect. A special allocation with substantial
economic effect reflects the actual economic welfare of its members instead of simply
shifting tax liability in an advantageous way among the members.
IRC § 761(b) states a partner “means a member of a partnership.” Therefore, any
person or entity can be a member in an LLC including but not limited to, S corps, C
corporations, other partnerships, LLCs, trusts, and foreign individuals.
IRC § 1402 describes net earnings from self employment as “gross income
derived by an individual from any trade or business carried on by such individual, less
the deductions allowed by this subtitle which are attributable to such trade or business,
plus his distributive share (whether or not distributed) of income or loss … from any
trade or business carried on by a partnership of which he is a member. “ One advantage
of an S corp is that the owners are not subject to self employment tax as the income
derived is not considered net earnings from self employment. Multi-member LLCs are
considered partnerships for tax purposes and therefore subject their active members to
self employment tax.
Due to the notion that S corps cannot have two different classes of stock, S corps
are unable to specially allocate income, gain, loss, deduction, credit and distributions;
thus everything must be allocated equally and distributions must be pro-rata. For
example, if the S corp had two classes of stock and wanted to give a preferred dividend
to a majority owner this would create a special allocation situation for the preferred
shareholder and therefore the S election would be terminated. On the other hand, an
LLC is able to have different classes of member interests. Using two different classes of
membership interests is a perfectly acceptable way to create a special allocation with
substantial economic effect.
common stock and still be considered to have only one class of stock.
Although an S corp is unable to perform a special allocation, the S corp is able to
differentiate the amount of salaries paid to each owner—assuming the owner is an
employee of the S corp. In turn this would effectively allocate more income to a specific
owner without performing a special allocation. The downside to this strategy is the
payroll tax liability involved. Additionally, S corp shareholders may engage in nontaxable
corporate reorganizations. Thus, if the entity is contemplating a public offering in the
future, the S corp is the more attractive vehicle.
Another advantage related to having one class of stock is that the S corp tax
accounting is simpler and more straightforward, since allocations are made pro-rata
according to ownership percentages. On the other hand, an LLC is allowed to specially
allocate income, gain, loss, deduction, credit and distributions as long as it passes the
substantial economic effect test. There are no payroll tax liabilities involved for the
members of an LLC, but the members are subject to the self employment tax rules.
The members of an LLC, unlike S corp shareholders, must generally pay self
employment tax on the LLC’s taxable earnings reported to the member via Schedule K-
1. An S corp must pay its owner a reasonable wage, which typically can be determined
by the following question, “What should I pay someone to manage my company?” Using
this approach, typically the payroll tax liability from an S corp is less than the self
employment tax liability incurred by a member of an LLC. Typically the more income the
S corp earns, the higher the reasonable wage, but the higher the income, the more
money the S corp and S corp shareholders would save in payroll taxes.
Another contrasting item is who can be a shareholder or member. An S corp is
severely limited by the types of shareholders it may have. This can hurt an S corp’s
ability to attract outside investors for capital infusions. An LLC does not have this
limitation as any person or entity can become a member. This is a major advantage of
an LLC, especially with a company that would like outside capital infusions for growth.
Both LLCs and S corps provide a liability shield to their owners for most non-tort
obligations. Thus, in most cases, a judgment creditor cannot attach the personal assets
of the owners to satisfy a debt owed by the S corp or LLC. Recently many attorneys
have advised their clients that LLCs offer stronger liability protection, primarily because
LLCs have historically enjoyed charging order protection. Under this doctrine, a
judgment creditor with an unsatisfied judgment and no security interest could only
attach a member’s right to receive distributions. Accordingly, the creditor could not force
a distribution or gain voting control of an LLC under Florida Law. See Fla. Stat. §
608.432(2)(b), (2008). When this outcome was contrasted with the fact that a creditor of
a corporation could attach the owners’ stock and thus gain control of the corporation by
voting the shares, it was clear that LLCs were superior to S corps on the issue of liability
protection. See Fla. Stat. § 56.061 (2008), (various categories of real and personal
property, including “stock in corporations,” shall be subject to levy and sale under
However, after Federal Trade Commission v. Olmstead, 528 F. 3d 1310 (11th Cir.
2008), the analysis is not as straightforward, at least in Florida. In Olmstead, the Florida
Supreme Court held that a court could allow a debtor to surrender “all right, title, and
interest” in the debtor’s single-member LLC to satisfy an outstanding judgment,
contrasting Florida with many other states where the sole remedy is a charging order.
Although the case was based on a single-member LLC, the Court’s rationale could
extend to multi-member LLCs as well. Thus, after Olmstead it can be argued that LLCs
and S corps are on an equal footing on the issue of liability protection.
Both LLCs and S corps offer a best of both worlds approach and either would do
well to serve the interests of a business owner seeking to reap the benefits of limited
liability and flow-through tax treatment. Additionally, since a company can now be set up
as an LLC and still elect S status, taxpayers can enjoy the benefits of both entity forms.
Internal Revenue Service Circular 230 Disclosure
Pursuant to Internal Revenue Service Circular 230, we hereby inform you that any tax advise set forth here-in
respect to U.S. federal tax issues was not intended or written by Morrison, Brown, Argiz & Farra LLC to be used, by
you or any taxpayer, for the purpose of avoiding any penalties that may be imposes on you or any other person
under the Internal Revenue Service laws.
Filed under Blog · Tagged with LLC, S-Corp, Tax issues
Posted by Danny on February 1, 2012 ·
Elizabeth Karwowski, founder, Get Credit Healthy Inc.
As published in Scotsman Guide’s Residential Edition, February 2012.
In order to demystify the business of credit for consumers, this past summer the Board of Governors of the Federal Reserve System introduced new notification rules. Now consumers will have broader access to information in their credit file, allowing them to check and correct any recorded inaccuracies while also understanding why those inaccuracies occurred.
Although these changes were made with the consumer in mind, mortgage originators should make themselves familiar with the changes as well. Stay up-to-date and learn about these new types of consumer notifications:
1. Credit Score Notice
When some consumers apply for credit, they’ll now expect a Credit Score Notice to be received. This document lists the consumer’s credit score and outlines how it compares to the scores of other individuals who are applying for the same type of loan.
Lenders need to provide this notice to all applicants regardless of the type of credit being sought. If a consumer doesn’t have a credit score, the notice from the lender should include the name of the credit reporting agency that has no score on file for the consumer.
2. Adverse Action Notice
If a consumer’s credit score is reviewed and subsequently declined, that consumer will need to receive an Adverse Action Notice. The contents of this document include the consumer’s credit score and any pertinent information related to that number.
Should inaccuracies be found, applicants have the ability to check their scores and dispute the information with the credit bureau. These inaccuracies can include any of the following:
Incorrect personal information
Tradelines and collection accounts
Payment history
Information recorded as public record
Mixing of files and identities of consumers
Re-aging of debt
Information still on file that’s past the statute of limitations
3. Risk-Based Pricing Notice
If consumers feel that they’re being offered new credit less favorable than that of other consumers applying for the same loan, it’s incumbent upon lenders to send their clients a Risk-Based Pricing Notice.
This notification alerts consumers to the possibility of inaccurate or disputable information in their credit files. An investigation resulting in the removal of inaccurate information can save consumers money while also making it easier to acquire credit on more favorable terms.
A lender also must send an Account Review Risk-Based Pricing Notice to a consumer who has an existing credit account where the annual percentage rate is increased by the lender upon review of the credit report and score. This notice delineates the factors used in determining the rate increase in order to make it easier for consumers to understand why their rate has changed.
• • •
All of these new notifications are intended to allow consumers to check the accuracy of their reports and better enable them to respond to the credit reporting agency should any changes be necessary.
Before contacting their credit reporting agency, however, consumers may want to discuss how their report is affecting the price they’re paying for borrowing, a discussion they may want to begin with mortgage professionals themselves. Keeping yourself familiar with these new types of notices can better prepare you for these discussions and, in turn, better prepare your clients to manage their finances.
Elizabeth Karwowski founded Get Credit Healthy Inc., a consumer-advocacy organization, to help individuals improve their credit health. She has FICO and Fair Credit Reporting Act certifications. Get Credit Healthy has been featured on NBC and Fox News and has helped hundreds of people restore their credit. In 2010, Karwowski began volunteering as a counselor with S.C.O.R.E., a nonprofit resource partner with the U.S. Small Business Administration. Reach her at (877) 850-3444, ext. 1, or experts@getcredithealthy.com.
Filed under Blog · Tagged with Good Credit . Help in Miami for good Credit
