Call us crazy. But we love the way they help entrepreneurs reduce payroll taxes (thereby making it easier to grow a business). And the way they create W-2 wages (which successful small businesses need to get a Section 199A deduction).
But the time of Covid-19 throws a monkey wrench into the gears. Why? Well, usually, you can easily make an S corporation election. Even a late one. But now? Yeah, now that doesn’t really seem to work.
Accordingly, this blog post explains the rules for making S elections. And then it discusses how late elections worked in the past and why the “old way” probably doesn’t work well anymore. Finally, it ends with an approach we think you can still use to make timely or late S elections in this era of Covid-19.
Note: This blog post doesn’t explain at a granular level how you save money with an S election. But you can poke around this blog and get lots of information. A good place to start your research? Million Dollar S Corporation Mistake.
Eligibility for S Corporation Tax Treatment
The S corporation rules work like this. An eligible entity (so usually either a corporation or a limited liability company) can make an election to allocate the entity’s income and deductions to its owners—and thereby make them pay the income taxes.
A couple of important points though. First—and people miss this sometimes—you need an eligible entity in existence at the point you want to make the S election and at the point you want to make the S election effective.
Example: Two business owners, Adam and Ben, want to elect S status. Both operate as limited liability companies. Adam formed his LLC on January 1, 2020 while Ben formed his on December 1, 2020. In early 2021, both entrepreneurs decide to make an S election. The earliest effective date Adam can use? January 1, 2020. For Ben? December 1, 2020.
A second point: Only eligible entities may make the election. The rules get a little complicated for firms operating in weird situations. But the usual eligibility rules, provided by Section 1361 of the Internal Revenue Service, highlight the main qualifications:
- No more than 100 shareholders (in general–but families count as one shareholder usually).
- No nonresident aliens for shareholders (so all owners need to be U.S. citizens, permanent residents, and other taxpayers that are really close to these things).
- A single class of stock (so all shareholders and LLC members get shares of income and deductions and of distributions proportionate with their ownership percentage).
Electing S Corporation Tax Treatment
If an eligible entity wants to make an S election? Well, thankfully it’s pretty easy.
In most cases, the corporation or LLC files a fairly simple three-page form, the 2553, which identifies the entity, specifies the effective date desired for the election, and then includes signatures from all the shareholders.
And then the other thing to note: Timing rules exist. Specifically, a 2553 election can be filed in the tax year before the date the entity wants the election effective.
Example: Adam decides he wants to start operating as an S corporation in 2021. He can file the 2553 anytime during the preceding tax year, which is calendar year 2020.
And a firm can also make an S election by filing after the year starts. Specifically, by the 15th day of the third month. That works, too.
Example: Ben wants an LLC he formed on December 1, 2020 to operate as an S corporation starting on January 1, 2021. He can file his 2553 on or before March 15, 2021. (Note that he can’t file his election before December 1, 2020.)
The Late S Corporation Election Exception
Okay, so here’s something else you want to know if you’re thinking about all this. And believe it or not, lots of tax accountants don’t know this.
You can file your S election late. Really late. Embarrassingly late.
That “15th day of the third month” rule? Ignore that.
What you don’t want to ignore, however? The IRS’s current rules for making a late S election (currently published in Revenue Procedure 2013-30.) You can get a good understandable overview here at the IRS website: Late Election Relief.
The two main things to know about late elections no matter what? First, you need to follow the revenue procedure for making the late S corporation election. (Mostly that means you need to justify your bungle of the timing and then flag the election as being a “LATE ELECTION FILED PURSUANT TO REV. PROC. 2013-30.”)
Second, you need to have reported your income consistent with the S corporation accounting rules. And the “consistent with the S corporation accounting” thing? What that boils down to, in many cases, is you paying shareholder-employees payroll during the year you want to elect S corporation tax treatment for.
Example: Charles had an LLC for all of 2020 and wants to elect S corporation tax treatment for 2020. It’s January of 2021, however. So nearly a year late. He may be able to make a late election. But he practically needs to have paid himself as a shareholder-employee during 2020.
And then there’s the one other thing to consider. The Covid-19 impact on S elections. Which is really the reason I’m even writing this blog post.
But first a quick digression…
The Late S Election Statement
To make a late S corporation election, your 2553 needs to include a statement on page 1 that says:
The corporation intended to be classified as an S corporation as of the date entered on line E of Form 2553. The corporation failed/fails to qualify as an S corporation on the effective date entered on line E of Form 2553 solely because Form 2553 wasn’t filed by the due date. The corporation has reasonable cause for its failure to timely file Form 2553 and has acted diligently to correct the mistake upon discovery of its failure to timely file Form 2553. Form 2553 is being/will be filed within 3 years and 75 days of the date entered on line E of Form 2553.
Your statement needs to describe the reasonable cause. Something like, “I thought my accountant was handling the election.” Or, “I called the IRS and misunderstood what the customer service person said.”
Finally, the corporation must, according to the Form 2553 instructions, confirm the following statements are true:
The corporation and all its shareholders reported their income consistent with S corporation status for the year the S corporation election should have been made, and for every subsequent tax year (if any), at least 6 months have elapsed since the date on which the corporation filed its tax return for the first year the corporation intended to be an S corporation and neither the corporation nor any of its shareholders was notified by the IRS of any problem regarding the S corporation status within 6 months of the date on which the Form 1120-S for the first year was timely filed.
By the way? That quoted language above comes directly from the 2553 form instructions.
Covid-19 Late S Corporation Elections
During the Covid-19 pandemic, the IRS has struggled to keep up with the paperwork.
And S elections filings (using that 2553 form)? They’ve gotten bogged down too.
An eligible entity filing a 2553 form in the usual manner—such as with a paper by-mail filings or by faxing in the 2553 form—can find the IRS takes, gosh, months? Or months and months?
Which means you can’t really know whether you’ll be able to timely file your first S corporation tax return by the deadline. Or even, if we want to pessimistic, by the extension deadline.
Example: Charles might think he can file a late S corporation election in the fall of 2020 using an effective date of January 1, 2020. But that election may not be processed by the March 15, 2021 deadline his 2020 S corporation tax return is due. If he does file his 1120S and the 2553 election hasn’t been processed, the 1120S filing fails.
Fortunately, you probably have a workaround. You can file the 2553 form that makes the S election with the 1120S tax return.
This approach of filing simultaneously the election and the first tax return should work whether you file by paper or electronically.
What the dual filing approach does? It prevents the IRS computers from trying to process your first 1120S S corporation tax return before the IRS has accepted your 2553 election.
Downloadable Free LLC Formation Kits (which business owners can use to get an S Corporation setup)
Finally, step by step instructions for completing the 2553 Form for Washington state appear here, Steps for Electing Sub S Status for Washington LLCs and Corporations, but you can probably use these step-by-step instructions for any other state, too.