The Delaware LLC is the most popular type of legal entity amongst small businesses. A Delaware LLC provides bullet proof liability protection for business owners’ personal assets while avoiding the red tape involved with maintaining a corporation. Entrepreneurs prefer LLCs because they are flexible, cost effective, and easy to set up.
Forming an LLC is simple, however, you may find it more difficult to understand how LLCs are taxed. The taxes an LLC pays can vary depending on how the company is structured. Here are some important points to consider about LLC taxation.
Does An LLC Pay Tax?
LLCs conducting business operations will likely incur state and federal tax obligations along the way. The Internal Revenue Service treats LLCs as “disregarded entities” for federal tax purposes. These are also known as “pass-through” entities. The profits and losses pass-through the business to its sole member and are reflected on the member’s personal income tax return. The business does not pay taxes directly and does not have to produce a tax return.
The default federal tax status of an LLC will depend on how many members are associated with the company.
- Single-Member LLCs Are Taxed As Sole Proprietors.
Single-member LLCs have a default tax status of sole proprietor.
The sole member of a single-member LLC reports income and expenses on the Schedule-C of the IRS Form 1040 tax return.
- Multi-Member LLCs Are Taxed As Partnerships.
An LLC with more than one member defaults to a partnership tax status for federal tax purposes. A partnership is another type of pass-through entity. Each member must file an informational partnership tax return IRS form 1065 along with a Schedule K-1 stating their share of the profits or losses of the business.
In Delaware, members can agree to distribute profits and losses disproportionate to their ownership in the company. For example, two members of a Delaware LLC with equal, 50% ownership can agree to split business profits 90% and 10%. Members can make arrangements for distributions through the private LLC Operating Agreement without making any public filings. This is an example of the flexibility provided by a Delaware LLC.
It is important to note that profits passed through an LLC to its members are considered “earned income”. This type of income is subject to the burdensome self-employment tax rate.
Can LLCs Be S-Corps or C-Corps?
The IRS’ “check the box” rules allow LLCs to make corporate tax elections. This means that LLC members can choose to have their company be taxed as either a C-Corporation or an S-Corporation.
Under the C-Corp election, business profits are effectively taxed twice. First, the LLC’s business income is taxed at the flat corporate tax rate. The 2017 Tax Cuts and Jobs Act set the corporate tax rate at 21%. Additionally, corporate dividends are subject to tax on the owner’s personal tax return.
An LLC can make the C-Corporation election on IRS form 8832. The LLC will need to file an 1120 US Corporation Income Tax Return.
The C-Corp election has a negative reputation because of double taxation, however, it does have some advantages. Surprisingly, a C-Corp election can actually result in the lowest possible tax rate for certain businesses if structured properly. C-Corps benefit from being able to determine a fiscal year. This allows a company to carry forward profits and make deductions from a series of losing years before it becomes profitable.
It is recommended to consult with a tax advisor within 75 days after forming an LLC to decide which tax election is best for your business.
The S-Corp election, like a partnership, allows the profits and losses of a business to pass through the LLC to the owners. This effectively allows the LLC to avoid double taxation on corporate income. As an S-Corp, the LLC pays a salary to its members which is subject to personal income tax. After paying a reasonable salary, the company can distribute dividends. Dividends made by an S-Corp are treated as passive income and are not subject to self-employment tax.
An LLC can make the S-Corporation election on IRS form 2553. The LLC will need to file an 1120-S US Corporation Income Tax Return.
It is advisable to allocate no more than 50% of corporate income to the “S dividend”. The IRS could consider an excessive S dividend to be an abuse of the tax code.
LLC Annual Fees
Many states require LLCs to pay an annual fee often called the “annual franchise tax”. The franchise tax is essentially a fee to maintain an LLC’s privilege of limited liability protections year after year. The franchise tax is typically a flat fee which does not change based on income. In Delaware, the annual franchise tax is $300 and is due on March 1 of each year after formation.
You should consult with a tax professional to determine which tax status is best suited for your business.