Introduction to and Overview of the Subchapter S-
Corporation: From Start-Up and Operation to
Liquidation
Paul La Monaca, CPA, MSTNSTP Director of Education
©2016 National Society of Tax Professionals
Legislative Change Effective for 2016 Form 1099 MISC Reporting
This presentation may reference the due dates of when Form 1099 MISC must be filed with the IRS.
Please note that the dates have been changed due to legislative action by Congress for amounts reported
in Box 7 as nonemployee compensation. The due date is now January 31 following the tax year whether
filed by paper or filed electronically. Therefore, for 2016 forms the due date is January 31, 2017.
Thank you
Paul La Monaca
NSTP Director of Education
Pass Through Entity
In 1958 Congress passed the Small Business Corporation Act which created an
entity for tax purposes which would help safeguard the family owned business
allowing legal protection and the pass-through of profits and losses to the
individual owners without incurring taxes at the corporate level and again
through the distribution of dividends to the owners of the family-owned
business.
I. Subchapter S-Corporation
A
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Subchapter S-Corporation
B
D
Formation
The formation of the corporation is dictated by State statute the same way as is a regular C-
Corporation.
Relief Provisions Available For Failing to Make a Timely Election
• Relief for a Late S Corporation Election Filed by a Corporation
• Relief for a Late S Corporation Election Filed by an Entity Eligible To Elect To Be Treated as a
Corporation
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Subchapter S-Corporation
G
E Qualifying as a Small Business Corporation
An S-Corporation faces significant restrictions regarding the number and type of shareholders
permitted to have ownership. A business entity is eligible to elect and be taxed as a S-Corporation only if
it qualifies as a “small business corporation.”
TAX PROFESSIONAL NOTE: Losses on distributions of property are not recognized.
Property Distributions By an S-Corporation
When dealing with property distributions by an S-Corporation the distribution is a deemed sale.
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Subchapter S-Corporation
F
H
No Double Taxation
The most significant advantage in electing the S-status is the single level of federal income taxation.
Liquidation of an S-Corporation
I Shareholder’s Basis in the S-Corporation Stock: Determining Initial Basis
The starting point for calculating basis in a conduit entity is to determine initial basis depending on
how the owner acquired the interest:
Purchase
Capitalization
Gift
Inheritance
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Subchapter S-Corporation
K
J Annual Adjustments that Increase Stockholder Basis
A shareholder’s S-Corporation stock basis is increased by:
a. Non-separately stated ordinary income from the operations of the business
b. Separately stated items of income
c. Any subsequent contributions of capital
Annual Adjustments that (Decrease) Stockholder Basis
A shareholder’s S-Corporation stock basis is decreased by:
a. Non-separately stated ordinary loss from the operation of the business
b. Separately stated items
c. Nontaxable distributions
d. Nondeductible expenses and losses
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Subchapter S-Corporation
L
M
Entity Debt Does Not Create Basis
A shareholder’s basis is not increased by the S-Corporation debt.
§1367 Pre 1/1/97 Ordering Rules to Shareholder Basis in the S-Corporation Stock
A shareholder’s stock basis is increased for all positive basis adjustments.
N Post 12/31/96 Ordering Rules to Shareholder Basis
Effective for taxable years beginning after 1996, the Small Business Act of 1996 provides that the
adjustments for distributions made during the years are taken into account before applying the loss
limitation for the years.
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Subchapter S-Corporation
O
P
Disadvantages of an S-Corporation: Restrictions on Stock Ownership
The Code imposes several restrictions as to who can be a shareholder of an S-corporation.
Built-In Gains Tax (B-I-G)
§1374(a) provides a general rule that if a former C-Corporation had appreciated assets when it converted to
“S” status and disposes of those assets within 5 years (recognition period) after its first day as an S-
Corporation, then the S-Corporation could be liable for a tax at the highest corporate rate on the net built-in
gains.
Q One Class of Stock Restrictions
§1361(b)(1)(D) provides that an S-Corporation may only have one class of stock which is Common
Stock.
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Subchapter S-Corporation
R
S
Allowance of Differing Powers
§1361(C)(4) provides that differences in voting power among classes of stock do not violate the one
class of stock requirement. As a result, an S-Corporation may have both voting and nonvoting common
stock.
Safe Harbor for Debt
Reg. §1.1361-1(1)(4)(ii) states that purported debt will only be considered a second class of stock for purposes
of the S-election if its principal purposes is to circumvent the rights to distribution or liquidation proceeds of
outstanding shares.
T Services Can Waive Invalid Subchapter S-Election
In the Small Business Job Protection Act of 1996 (H.R. 3636) Congress gave the Service the authority
to grant relief for inadvertent failures to make a qualified S-election.
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Subchapter S-Corporation
U
V
S-Corporation Termination and The Five Year Waiting Period
§1362 provides a general rule that if the S-Corporation election is terminated or revoked then the
corporation cannot make another S-Corporation election without the consent of the IRS before the
fifth tax year after the first tax year for which the termination or revocation was effective.
Termination of S-Election
Taxpayers who elect an S-Corporation must be aware of the termination rules.
Taxpayers incur the risk of inadvertent termination of the organization’s “S” corporation status.
W Employment Issues of an S-Corporation Shareholder:
Subchapter S-Corporation shareholders who are activity involved in the daily operations of the business
are subjected to the employment tax provisions of the Code.
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Subchapter S-Corporation
X
Y
Establishing Reasonable Compensation
The Code specifically empowers the IRS to reallocate an S-Corporation’s income in family income-
splitting situations.
Health Insurance Premiums for Subchapter S-Corporate Shareholders: IRS Position Eased
If the business is operating as a Subchapter S-Corporation, then there is a different tax consequences
if the individual who is the sole shareholder and sole employee, purchases the health insurance in the
shareholder’s own name.
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II. Corporate Life Cycle Includes Termination:
Liquidation
B Income Tax Effects of Corporate Liquidations: Gain or Loss to Shareholders and Entity
The tax professional will need to assist their client in solving important issues when the entity
liquidates such as:
• What is the tax effect to the liquidating entity?
• What is the amount and character of the shareholder’s recognized gain or loss?
• What is the adjusted basis of the property that is received by the shareholder?
• When does the holding period commence for the property that is received by the shareholders?
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Corporate Life Cycle Includes Termination: Liquidation
C
D
Basis of Property Received by the Shareholder in Liquidation of the Corporation
The bases of the properties that are received are valued at the property’s FMV on the liquidation date.
The holding period of the assets received by the shareholder commences on the day after the liquidation
date.
Gain or Loss Recognized by the S-Corporation on Property Distributed in Complete Liquidation
§336(a) provides general rule that gain or loss shall be recognized to a liquidating corporation on the
distribution of property in complete liquidation as if such property were sold to the shareholder at its
fair market value.
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Corporate Life Cycle Includes Termination: Liquidation
E
F
Definition of a Complete Liquidation: Not Defined in the Code
When there is more than one distribution, the corporation must be in a liquidation status at the time
that the first liquidating distribution is made under the plan. This liquidation status must continue until
the liquidation is completed.
Tax Effect of the General Liquidation Rules
The coverage of the general liquidation rules is divided into the following issues:
• Amount and timing of gain or loss recognition,
• Character of the recognized gain or loss, and
• Basis of property received in the liquidation.
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Corporate Life Cycle Includes Termination: Liquidation
J
K
Subsequent Assessments Against the Shareholders
The shareholders may be required at a date subsequent to the liquidation to pay a contingent liability of
the corporation or a liability that is not anticipated at the time of the liquidating distribution
(liquidation is completed or a judgement that is contingent at the time the final liquidation distribution
is made).
Effect of Liquidation on the Liquidating Corporation
When property is distrusted in redemption of stock, §336(a) provides that gain or loss must be
recognized by the liquidating corporation.
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Corporate Life Cycle Includes Termination: Liquidation
L
M
General vs. Specific Expenses of the Liquidation
The corporation is permitted to deduct the general liquidation expenses incurred in connection with the
liquidation transaction.
Corporate Filing Requirements
Within 30 days after the adoption of a plan for the liquidation of the corporation, a Form 966 should
be filled with the IRS.
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