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Last Updated: 3/12/24
Interested in forming a Delaware S corporation but unsure where to begin? Look no further. Our guide is designed to walk you through the process of setting up an S corporation in Delaware, including an overview of the potential tax advantages.
Opting for S corp status as a limited liability company (LLC) may result in reduced self-employment taxes for its owners. Moreover, for C corporations based in Delaware, adopting an S corp structure offers a strategy to circumvent the issue of double taxation on the company’s earnings.
Before you decide on an S corporation in Delaware, you need to be aware of the S corporation filing requirements. Not every LLC or corporation will qualify. To get S corp tax status from the IRS, your business must:
If your business fits these requirements, keep reading to learn about forming an S corporation in Delaware.
To set up a Delaware S corp, you’ll first need to create either an LLC or a C corporation if you haven’t already done so. Then, you’ll file an election form with the IRS.
If you’re ready to learn about filing as an S corporation in Delaware, we’ll walk you through it step by step. First, we’ll show you how to form an LLC in Delaware. If you’d prefer to form a Delaware corporation instead, follow the instructions on our Delaware corporation page. Then, in Step 6, we’ll explain how to file for S corp tax status as either an LLC or corporation.
When an LLC or C corp elects to be taxed as an S corp for federal income taxes, Delaware, like most states, applies state income tax in the same way. That is, the business itself doesn’t pay federal or state income tax on the profits. The profits are usually taxed only on the personal income tax return of the individual owner or owners.
Even so, Delaware does require every S corp that derives income from within the state to file Form 1100S, S Corporation Reconciliation and Shareholders Information Return.
For some LLC owners, forming an S corp can lower what they would pay in self-employment taxes. For C corporations (the default form of corporation), it can be a way to avoid double taxation. Our “What Is an S Corporation?” page explains more about the pros and cons of S corp tax status.
If you’re thinking of setting up an S corp, Delaware may be the place to do it. The First State has a long-established reputation for being friendly to businesses, especially Delaware corporations.
For detailed formation steps, see our Delaware LLC formation guide.
For detailed formation steps, see our Delaware Corporation formation guide.
Submit the form to apply for S corporation status. Once your LLC or corporation formation is approved by the state, you’ll need to file Form 2553, Election by a Small Business Corporation, to get S corporation status.
The IRS requires you to complete and file your Form 2553:
OR
One additional note for LLCs wishing to file as an S corporation: If your LLC is past the 75-day election deadline, you’ll also need to file Form 8832, Entity Classification Election, to elect to be taxed as a corporation. Then you would file both Form 8832 and Form 2553 together via USPS-certified mail.
For more information on when and how to file Form 2553, visit the IRS website.
While S corporation classification does come with benefits for some businesses, making this election might not be right for everyone. Be sure to carefully weigh the various pros and cons before deciding how you want to proceed. Consult a tax professional about whether the S corp election would be best for your company.
The benefits of filing as an S corporation for an LLC differ from the benefits for a C corporation. Let’s look at the advantages for LLCs first.
A traditional LLC already has pass-through taxation, so the benefits of S corp election for an LLC have to do with self-employment taxes. This takes some explanation, but for certain LLCs, it could save a lot in taxes.
The members of a standard LLC are considered self-employed. They’re compensated by receiving their share of profits from the LLC, but they aren’t allowed to be employed by the LLC. Being self-employed means paying self-employment taxes (the taxes that go toward Social Security and Medicare, which add up to about 15.3%) on all profits they receive from the LLC. This is more than the taxes they’d pay when working for someone else because their employer would pay part of them.
But electing S corporation status allows the members to be compensated in two ways, by receiving their share of the profits and by being paid as an employee. Once they do that, they only pay Social Security and Medicare taxes on their salary and not the profits they receive.
Depending on factors such as how profitable your company is, the savings could add up to a lot. (To be clear, the members will still pay income and all other applicable taxes on their share of the profits.)
One caveat to this arrangement is that the IRS expects you to pay yourself a “reasonable salary” as an employee of the LLC. Otherwise, you could pay yourself an annual salary of $2 and contribute almost nothing to Social Security and Medicare.
So, what’s considered “reasonable compensation”? The instructions on Form 1120-S read, “Distributions and other payments by an S corporation to a corporate officer must be treated as wages to the extent the amounts are reasonable compensation for services rendered to the corporation.” Essentially, the IRS considers “reasonable” to be something similar to what others in your field are earning for the same job.
If the IRS decides that your salary isn’t reasonable, it has the authority to reclassify your non-wage distributions (which are not subject to employment taxes) to wages (which are subject to employment taxes). Several court cases have supported the IRS’s right to do this.
If you have a C corporation (the default form of corporation), filing as an S corp has the following benefits:
A major disadvantage for traditional corporations is “double taxation.” When the corporation makes money, the IRS taxes those profits on the corporate level. But when those profits are distributed to the individual owners (shareholders) as dividends, they’re taxed a second time because the shareholders pay personal income tax on their share of the profits. In other words, the profits are taxed twice.
But when a corporation qualifies to be an S corp, the corporate income tax is bypassed; profits are taxed only at the individual level. The corporation itself isn’t taxed on them. This is called “pass-through taxation,” and it’s how business entities like sole proprietorships and general partnerships are taxed. LLCs are also taxed this way unless they opt to be taxed as a corporation.
We need to add here that, since the 2017 Tax Cuts and Jobs Act, the corporate tax rate has been lowered to a flat 21%. So, the disadvantages of double taxation aren’t as severe now as they were.
Just as business profits pass through to the owners of an S corp, so do the losses. Unlike C corporation shareholders, S corp owners can write off the company’s losses on their personal income statements.
This can help offset their income from other sources and can be helpful if the corporation loses money in the initial years. Still, make sure you’re aware of the IRS’s shareholder loss limitations.
Under the Tax Cuts and Jobs Act of 2017, some S corp owners may be able to deduct up to 20% of their qualified business income. This deduction isn’t available to C corporation shareholders.
Qualified business income (QBI) is essentially your share of the company’s profits, or, as the IRS puts it, “QBI is the net amount of qualified items of income, gain, deduction and loss from any qualified trade or business, including income from partnerships, S corporations, sole proprietorships, and certain trusts.” The IRS website has a more detailed explanation as to what is and is not included in QBI. There’s an income threshold that, if exceeded, may reduce your QBI (see the IRS website for details).
Owning an LLC with S corporation status can also have some drawbacks over a traditional LLC:
As we listed above, S corps must adhere to more regulations than a standard LLC or corporation. An S corp can have no more than 100 members, and none of them can be partnerships, corporations, or non-resident aliens. A traditional LLC doesn’t have these limitations.
Due to the above restrictions and the requirements about paying yourself a “reasonable salary,” the IRS tends to scrutinize LLCs with S corporation tax status more closely. That could mean a greater chance of being audited, even if you follow the law to the letter. In fact, LLCs with S corporation status may want to observe many of the same formalities that corporations do (such as regular meetings and extensive record keeping), even if they’re not legally required to.
Having an LLC that files as an S corporation usually means more paperwork. If you don’t already have to do payroll for your business, being an owner-employee means that you’ll have to do so. Your taxes will be more complicated, too.
With these added complications, you’re likely to have higher administrative costs. You may find that you need an accountant, bookkeeper, and/or a payroll service or software.
S corporation status also has its pitfalls for Delaware corporations:
As mentioned above, an S corp can’t have more than 100 shareholders, while a C corporation has no such restriction. That limitation could become an issue later if the corporation expands and goes public.
All S corp shareholders must be U.S. citizens, or certain trusts or estates. That could limit the corporation’s ability to expand internationally. Also, the corporation can’t have partnerships or corporations as shareholders. C corporations don’t have these limitations.
Corporations sometimes use preferred stock to attract investors, but the IRS doesn’t allow this for S corps.
Because of the restrictions S corps have, the IRS watches them more closely to see if they’re in compliance. In other words, your corporation is more likely to get audited.
We want to stress again how important it is to have tax guidance about your specific situation from a qualified tax professional. An accountant with S corp experience should be able to make sure you stay in compliance with the IRS, and they also may be able to help you find additional tax savings.
Forming a business can be complicated, but we’re here to make it as easy for you as possible.
If you want to form an LLC with S corp status, our S corp service can help you do just that. Plus, we offer other services to help you run and grow your business and stay in compliance with state and federal laws.
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First, know that an S corporation is not a business structure or separate legal entity. It’s a tax classification that either an LLC or a corporation can apply for with the Internal Revenue Service (IRS), provided it meets the requirements. We’ll outline those criteria and the steps you would need to take to file as an S corporation if you decide that it’s right for your business.
For a corporation, the biggest tax advantages are being able to avoid double taxation. Typically, a C corporation’s profits are taxed at both the business and individual shareholder level, while an S corp’s profits are taxed only on the individual level when the shareholders pay personal income tax on their dividends.
For an LLC, when the members elect S corporation status, they can be compensated in two ways, by receiving their share of the profits and by being paid as an employee. Once they do that, they only pay employment taxes (Social Security and Medicare) on their salary and not the profits they receive. For some LLCs, this can add up to substantial tax savings.
The naming process for your LLC or corporation isn’t affected by your S corporation status. Before formally registering a business name, search the Delaware business entity records to make sure that you don’t select one that’s already in use by another business. That aside, however, you can typically name your Delaware company nearly anything you want as long as you comply with any applicable state naming regulations.
S corp status may not be right for all businesses. If you’re not sure whether to identify your LLC as an S corp or keep the default status, be sure to consult with an experienced business law attorney or accountant in Delaware.
Calculating taxes can be challenging, but you can check out our S corp tax guide to learn more about navigating taxes for your Delaware S corp. A certified tax professional can give you more definitive information for your circumstances.
Calculating taxes can be challenging, but you can check out our S corp tax guide to learn more about navigating taxes for your Delaware S corp. A certified tax professional can give you more definitive information for your circumstances.
No, our S corp service is only for applying for S corp status when you form your LLC with us.
According to the IRS website, you’ll be notified of whether or not your S corp election is accepted within 60 days of filing Form 2553.
If you’re a new LLC, you must apply for S corp status within 75 days of the formation or no more than 75 days after the beginning of the tax year in which the election is to take effect. For an existing business, you would file at any time during the tax year preceding the tax year it is to take effect.
An LLC is a legal business entity, but an S corp is a tax filing status. You can read more on our LLC vs. S corp page.
Yes, provided it meets the IRS’s requirements for becoming an S corporation.
When an LLC or C corp elects to be taxed as an S corporation for federal income taxes, Delaware, like most states, applies state income tax in the same way. That is, the business itself doesn’t pay federal or state income tax on the profits. The profits are usually taxed only on the personal income tax return of the individual owner or owners. However, Delaware does require every S corporation that derives income from within the state to file Form 1100S, S Corporation Reconciliation and Shareholders Information Return.
Disclaimer: The content on this page is for information purposes only and does not constitute legal, tax, or accounting advice. If you have specific questions about any of these topics, seek the counsel of a licensed professional.
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