New York S Corporation Advantages and Disadvantages
New York S Corporation and Asset Protection
New York S Corporation:
S Corporation Definition-A corporation with 75 or fewer shareholders,that has elected and qualified for a special tax status with the Internal Revenue Service (IRS).
The main advantage associated with the S Corporation is that the income passes through to the shareholders, therefore avoiding a perceived double taxation of a C-Corporation.
Should I form a New York S Corporation?
The S Corporation:
An "S Corporation" is a corporation that elects to be taxed under Subchapter S of the Internal Revenue Code (enacted in 1958
and periodically amended) and receives IRS approval of its request for Subchapter S status. As a legal entity (an artificial
person), the S Corporation is separate and distinct from the corporation's owners (the stockholders). Under New York incorporation law, there is no distinction between a C corporation and an S corporation.
New York S Corporation: Advantages and Disadvantages
Advantages of the S Corporation:
The independent life of the corporation makes possible its continuation, and the relatively undisturbed continued
operation of the business regardless of incapacity or death of one or more stockholders.
Fractional ownership shares are easily accommodated in the initial offering of stock.
The purchase, sale, and gifting of stock make it possible to have changes in ownership without disturbing the corporation's ability to conduct business.
The requirement that the corporation's finances and records be separate from the finances and records of stockholders
reduces the risk of unrecognized equity liquidations.
With only a few exceptions, under the Subchapter S election for taxation as a partnership the S corporation pays no
income taxes and corporation income or loss is passed through direct to the stockholders.
To the extent the corporate shield is maintained and other investments and savings of the stockholders are not at risk, the personal life of stockholders is simplified.
The annual meetings of stockholders and consultations with legal counsel can provide stimulus for improved communication
within the stockholder group (often a family group) and can provide more comprehensive guidance for management.
Depending on the corporation's business record and the policies and practices of prospective lenders, access to credit
and the ability to secure needed resources may be improved.
Earnings representing "return on investment" (interest, rental payments, etc.) are not subject to self-employment tax as long as stockholder-employees receive adequate compensation for labor and management of the business.
Disadvantages of the S Corporation:
Lenders may require personal guarantees from corporate officers as a condition of supplying credit, thus negating the
limitation of liability.
Conflicts or disagreements among the stockholders may immobilize decision making.
Restrictions on the sale of stock and/or buy-back agreements included in the bylaws may prevent minority stockholders
from being able to recover the value of their investment in the corporation.
Through the processes of gifting and inheritance, stock ownership can become divided among many persons who are not
active in the business and they may become a voting block that does not support needs and decisions believed desirable by
Over time, corporation paid benefits for stockholder-employees may become costly and exceed the ability of the business
Employment benefits such as life insurance, health insurance, and housing costs are taxable income to stockholder
employees with 2 percent or more stock ownership and to employees who are directly related to persons owning 2 percent
or more of the corporation stock.
If appreciated assets are owned by the corporation and the corporation is dissolved, significant income taxes on the
appreciation amount will be generated.
New York's 2008 Business Tax Climate Ranks 48th
New York ranks 47th in the nations State Business Tax Climate Index. The Index compares the states in five areas of taxation that impact business: corporate taxes; individual income taxes; sales taxes; unemployment insurance taxes; and taxes on property, including residential and commercial property. Neighboring states ranked as follows: Pennsylvania (27th), New Jersey (49th), Connecticut (38th) and Vermont (44th).