Corporate tax in the United States is a tax on the taxable income of a C corporation or an entity taxed as a C corporation. The corporate tax is the default tax levied on a business entity unless the entity qualifies to be taxed under different tax rules such as those for non-profit organizations and S corporations. The corporation is taxed under 26 U.S.C. § 11 and Subchapter C (26 U.S.C. § 301 et seq.) of Chapter 1 of the Internal Revenue Code.
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INTRODUCTION
An effective tax structure is one aspect of selecting an entity. Other critical considerations include: limited liability, transferability of interests, continuity of existence, centralization of management and control, administrative complexity and expense, capitalization needs, plans for employee equity plans, confidentiality over intra-ownership matters and applicable laws and regulations.
For example, a professional law corporation is the only entity with limited liability available for solo practitioners operating a law business; the choice is simply whether to elect S treatment or not. To make the decision easier for the sole practitioner, personal service corporations (such as a law firm) are taxed at a federal tax rate of 35% (staggered corporate rates of 15%, 25%, 34% and 35% do not apply). In the foregoing solo practitioner example, the choice came down to whether to elect S treatment or not. However, if two persons wanted to start a law firm, they could also choose to operate under a limited liability partnership (LLP), which would receive pass through treatment. Each of the persons could hold the interest directly or through a professional corporation, which may or may not elect S treatment. By changing the facts slightly (adding one more principal), the tax considerations quickly become complex.
In that regard, tax considerations for entity selection can be a relatively straightforward or complex depending on the facts. As a result, practitioners should strive to collect and gather the relevant and material facts for entity formation. See Appendix A for a sample list of questions that should be asked during entity selection.
© 2008 Jay Bettinger, Esq. All Rights Reserved.
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