It is very easy to form an LLC and have it be taxed as an S corporation. However, an S Corp is not formed by itself; another entity is created and then taxed as an S Corp.
While LLC formation is easy, It is also very easy to screw it up. The Watson CPA Group can assist with all the filings with the Secretary of State (for any state), and our fee is $425 plus the state filing fees ($50 to $200ish, some states are even $500). Some states such as Nevada require an initial report, and that will typically add $100 to our fee plus the initial report fee. As an aside, Nevada might have good corporate laws but it is an expensive state to form a business entity in. More on the Nevada hype in a bit.
Sure, you can do it on your own or through LegalZoom, but we will provide consultation and advice during the startup process. You can also use an attorney but be careful since not all attorneys are the same. If you were an idiot before law school getting a law degree doesn’t suddenly make you smart. We have seen many things messed up by attorneys who didn’t understand their client’s needs, didn’t understand the tax code, unnecessarily complicated the crap out of an otherwise simple entity structure, so on and so forth.
Accountants and doctors are not immune. How many quack doctors are there? Plenty. Accountants? Just a bunch of nerdy, socially awkward types. Thanks to Ben Affleck, us accountants are also secret assassins. Thanks Ben, the secret is out. Way to go, wizard.
Some of the kidding aside, we have seen some attorneys do some ingenious things as well. The Watson CPA Group works with business law and corporate attorneys all the time. It is a great relationship since they know corporate governance and contract law, and we know taxation and businesses. Do not think you only need an attorney- you need both an attorney and sharp consultants.
The Watson CPA Group will do the following-
LLC, Professional Corporation or Corporation
Side Note: California allows corporate officers to opt-out of the State Disability Insurance (SDI) tax, which can easily exceed $1,000 annually depending on your salary. However, if you create an LLC and have it taxed as an S corporation, California says No since the underlying entity remains an LLC. If you create a corporation and elect S Corp taxation, then you can opt-out. Subtle difference, and the fees are virtually the same. Several states have nuances like this that LegalZoom and others might not be aware of.
We have more details on Operating Agreements later in this chapter. Please review yours for probable missing things.
The days of deducting out of pocket expenses such as mileage, cell phone and home office were not a good idea with S corporations prior to the Tax Cuts and Jobs Act of 2017, but today they are essentially gone. The Accountable Plan allows you to reimburse yourself as an employee, and as such the deduction is taken on the business tax return.
Corporate Minutes and Books of Record
However, if your underlying entity is a corporation, the Watson CPA Group recommends maintaining your Book of Record for three reasons- helps to maintains the integrity of the corporate veil, some banks and other institutions might ask for it to allow you, the controlling shareholder, to act on behalf of the corporation (such as buying an automobile in the business’ name), and the IRS from time to time will ask for it during an audit.
Corporate Minutes are generally not required for LLCs.
So, all banks will want either an EIN or a SSN to open a checking account regardless of it is a personal or business checking account. And an EIN is tied to your SSN. Follow the money, find the bad guys.
Note: You can also just get another personal checking account (typically for free from your current bank). However, if you plan on taking checks written in your business name, you’ll need a business checking account or a personal checking account with a DBA (doing business as). Then again, most people are utilizing direct deposit or some sort of ACH / EFT deposit which bypasses account names issues.
Remember, you can create a DBA for your entity name. So, if your business is a franchise but you want a different LLC name on the checking account, you can be Big Bucks LLC dba Starbucks or Bad Coffee dba Starbucks. Remember, friends don’t let friends drink Starbucks. Please, find a decent coffee for yourself unless it is winter and Starbuck’s chestnut and praline latte is in season. Yum!
S Corp Election
Therefore our advice is to wait until November or December to decide if the election makes sense, and then make it retroactive to the start of the LLC or January 1. So, get the LLC in place and wait on the S Corp trigger until it makes sense- and Yes, we provide this consultation for you.
More on the late election later but here is a spoiler-
This is all legit, pain in the butt for us, but all legit and successful. The Watson CPA Group probably did this about 90 times last year, and we’ve been doing this for more than a decade without major hiccups. Not the ideal way in the eyes of the IRS- but then again, hate the game not the player. We are just playing within the parameters of their game.
Not sure if you want to have a full-blown S corporation? As stated earlier, the break-even point where an S Corp makes sense is about $30,000 in net business income after expenses. Why? Simple cost benefit analysis. The expense of running an S Corporation such as payroll and tax preparation equals the savings at $30,000.\
How did we calculate that? Our Aspen S Corp package is $2,940 per year. Take this number and divide it by an average savings of 9%, and that equals $32,667. Our S corporation packages are discussed further, but it is basically your corporate tax return, individual tax return, payroll events, and unlimited tax planning and consultation.
Let’s say you are teetering on that income figure, and not sure about running payroll and all that jazz. You could still run your business income and expenses through your tax return as a sole proprietor or another single-member LLC, and take the small self-employment tax hit. Then simply file a No Activity tax return for your S Corp. Legal. Legit. All good in the IRS hood.
If you expect to lose money the first two or three years, the S Corp election becomes a bit more complicated and more discussion is required- it is generally better to delay the S Corp election so you can avoid the costs and hassles of filing a corporate tax return. More importantly, a single-member LLC or sole proprietor can theoretically have unlimited losses (assuming the money is all at-risk) where a partnership or S Corp cannot because of partner and shareholder basis rules. Briefly, as an S corporation you are both an investor and an employee. As an investor in any business, you cannot lose more than your investment (basis). Same thing here.
Here are some more gee-whiz stats
Taxpayer's Comprehensive Guide to LLCs and S Corps : 2019 Edition