S CORPORATIONS AND C CORPORATIONS: HOW TO FORM, ADVANTAGES, AND DISADVANTAGES

When starting a business, one of the most important choices that is frequently overlooked is the business entity selection. The choice between forming your business as a sole proprietorship, partnership, LLC, C Corporation or S Corporation is much more than a choice of letters. Each entity alters how the business must be structured, how taxes are reported and paid by the owners, and impacts the business' ability to raise capital. Further, it is difficult to change business entities once the business is running, and doing so may incur substantial costs. This post will be the third, and final, in a series of explanations of the different corporate entities as well the features that make them attractive or unattractive to new businesses.

The final two types of business entities to discuss are known as C corporations and S corporations. Although the corporate entities have important differences, the formation of the corporations is the same. Firstly, it is important to recognize that a business which wishes to incorporate should do so in Delaware, as the State has the most robust corporate governance law in the country. In order to create a corporation in Delaware, the business must first choose a name including some derivation of one of the following words: Incorporated; Institute; Society; Union; Syndicate; Company; Club; Foundation; Corporation; or Limited. This name must be unique. Next, the business must prepare to file the certificate of incorporation. On the certificate, the business must state its registered agent, the nature of the business, the amount of shares of stock of the incorporators, the directors, and addresses for all named parties. Once completed, the certificate of incorporation must be filed with the State. Delaware also requires that corporations maintain written bylaws, although they are not required to be filed with the state. The bylaws establish the rules and procedures of the corporation, such as the size of the board of directors, the board's responsibilities, who may call shareholder meetings and where the meetings are to occur. Next, the corporation must appoint its initial corporate directors, hold its first board of directors meeting, and issue stock. Lastly, corporations must comply with any other business, tax, state (if conducting business outside of Delaware) or industry specific regulations, such as obtaining the necessary licenses to do business and filing other required paperwork.

The sole additional step in forming an S corporation is that the business must designate "S" status with the IRS within 75 days of the incorporation date (the date the business filed the certificate of incorporation). The S corporation must also meet the additional requirements of not having more than 100 shareholders, the shareholders cannot be non-resident aliens or corporations, and S status must be approved by all shareholders. These requirements generally necessitate that S corporations are small businesses.

The key distinctions of S corporations and C corporations are in the benefits that each structure receives. Although the directors and shareholders of both corporate structures enjoy limited liability, S corporations are taxed as "pass-through" entities, like LLCs and sole proprietorships. This means that the profits are passed directly to the shareholders, who must report their share of the profits as income on their personal taxes. In contrast, C corporations' profits are taxed twice as the forming of a C corporation creates its own taxable entity. The C corporation is taxed when it turns a profit, and is also taxed when the corporation pays dividends. However, a distinctive advantage for the C corporation is its ability to attract investors due to its highly regulated structure. Simply put, the regulated nature of C corporations makes the structure predictable and easily understood by investors. Contrast that with LLCs which are similar but can be structured any way the members please. Additionally, C corporations are also attractive to investors as shareholders are not subject to taxes unless the corporation pays them through dividends, distributions, or salary. This relieves investors of the possibility of being taxed on money they may not have necessarily received, as could happen under "pass-through" companies such as LLCs or S corporations.

The disadvantages of S and C corporations are few. Firstly, the requirements of S corporations, particularly that its limited to 100 shareholders, limits S corporations to small businesses. It would be extremely difficult, if not impossible, for a large corporation (or a company planning on expanding very quickly) to limit itself to 100 shareholders. Additionally, S corporations are restricted to one class of stock. Multiple classes of stock are normally issued in C corporations to establish different levels of voting rights. Under a single class of stock, the voting rights are equal. The disadvantages of C corporations are predominantly administrative. C corporations are costly and time consuming to start and operate. Additionally, C corporations have increased paperwork and recordkeeping burdens as it is highly regulated by federal and state governments. The most notable disadvantage to C corporations is the double taxation at the corporate and individual level. However, corporate tax levels are favorable as compared to income tax.

As a result of its requirements, advantages and disadvantages, S corporations are best suited for small businesses who seek greater structure than LLCs have to offer, and intend to remain small businesses. The 100 shareholder requirement is limiting, and it is important to note that changing corporate structures can be costly. As for C corporations, they are best suited for businesses that plan to utilize investor funding and/or plan to expand rapidly into large corporations. The startup and operating costs are greater than its S corporation counterpart, but any need for investor financing logically requires a business to form a C corporation.

These are just some of the advantages and disadvantages of LLCs. It is important to remember that the best choice of entity varies business to business.