To LLC or not to LLC: Entity choice and tax reform
Sometimes, an accountant’s error is open for all the world to see, as in the wrong envelope handed over by the PwC accountant at the Oscars on Sunday night. At other times, only the accountant, the client, and perhaps the IRS are aware of the error. That’s the case in choosing the type of entity to use when setting up a business.
It’s a crucial decision that has to be made right at the outset of the entity lifecycle. And although taxes are a significant driver in determining which entity structure to select, they are not the only factor to consider – there’s also access to capital, liability, the nature and the number of owners, Social Security and Medicare taxes, restrictions on accounting methods, the owner’s payment of company expenses, filing deadlines and extensions, multistate operations, and exit strategy, according to Barbara Weltman, author of J.K. Lasser’s Small Business Taxes.
And with a blockbuster of a tax reform in the offing, now may be a good time to check into the possibilities and issues associated with each entity type. The promised tax reform may significantly affect how advisors and entrepreneurs choose the right entity in which to do business.
“I’ve always been an LLC guy because there’s a single level of taxation,” said Scott Kaplowitch, managing partner at Edelstein & Co. “But I’m starting to rethink that.”
“If you exit an LLC, there are more benefits to the buyer, so potentially you may receive more for the business when you sell,” he said. But under a potential new tax regime, a C corporation may be more beneficial. There would still be the double tax, but with the lower rates and the possibility of using the Section 1202 exclusion if you’re a qualified small business, the C corporation becomes more attractive. ”
There are also additional deductions available to a C corporation that are not available to an S corporation or an LLC, such as the deduction for health insurance, Kaplowitch observed.
While the exact outline of tax reform is not known, there have been some hints along the way, according to Chip Wry, a partner in law firm Morse Barnes-Brown Pendleton. “It will be similar to the GOP Blueprint. Both the Trump plan and the Blueprint call for lower corporate and individual rates, and an intermediate pass-through rate.”
“The way to look at it when you approach entity choice is how you think you will make money,” he indicated. “Will you retain earnings, or will they be distributed? Even today the top corporate rate is lower than the individual rate. If you retain earnings, you can actually get a lower effective rate under a C corporation than an S corporation or an LLC, but if earnings are distributed to the owners periodically, you can get a lower effective rate with a pass-through entity, since a C corporation’s earnings are taxed twice.”
Both the Trump plan and the GOP plan the rate relativity remains as it is today, with the corporate rate under each plan lower than the individual rate, Wry observed. “So if you retain earnings, it might point to a C corporation as the better choice, but if you distribute earnings the combination of the two rates will result in a higher rate than on a pass-through, the same way it is today. If there is a need to be a C corporation for other reasons, the lower rates will make it more palatable under tax reform.”
A venture capital fund, for example, may include tax exempt and foreign investors, Wry noted: “They have certain sensitivities they can avoid by investing in a C corporation.”
“Under the Trump proposal, a C corporation will have a significantly lower rate than the individual rate applied to pass-throughs, according to Timothy Jessell, CPA, Esq., a partner at Greenberg Traurig. “The question is whether or not entities should start converting to C corporations,” he said. “The answer is, ‘Not yet,’ and probably ‘No’ in most situations. Under the House and Trump proposals there’s also a lower rate for a pass-through entity, so it gets the benefit of the lower rates as well.”
There are situations where it makes sense to be a C corporation, such as the availability of the Section 1202 exemption on the sale of the stock. “If I could get zero tax on a sale of the business, I would accept a lower sale price,” he said. “That makes sense for tech start-up companies.”
For a company already in existence, the choice is probably to wait and see, noted Daniel Zucker, a partner at McDermott Will & Emery. “The situation is very fluid,” he said. “If it turns out that there are reductions in the corporate tax rate but no or very little reductions in the individual rates, that would favor a company being taxed as a C corporation. With an S corporation or an LLC you have one level of tax – earnings can be distributed without incurring a second level of tax. But a lot of corporations don’t pay dividends. If they re-invest earnings in the business, they would pay less tax than a flow-through entity. The real point is to wait and see. Behavior shouldn’t change based on what people are anticipating the law will be.”