Should I be a C Corp? Choice of Entity after Tax Reform

The recently enacted 2017 Tax Act (originally called the Tax Cuts and Jobs Act – “Tax Reform”) made major changes to the US tax system.  Because C corporations (“C corps”) are now taxed at a flat 21% federal income tax rate, many business owners are asking whether they should structure their businesses as C corps.  The answer, unfortunately, is not simple.  Business owners should discuss the various considerations of this decision with their tax advisors.  Here are some of the pros and cons of using a C corp after Tax Reform:

1. Benefits.  C corp income is taxed at a flat 21% rate whereas partnership income flowing through to an individual partner is subject to tax at a maximum 37% rate.  In addition, C corps can fully deduct state and local taxes whereas an individual’s deduction is limited to a maximum of $10,000.

2. Pass-through income (eg, S corporation or partnership) may be eligible for a 20% deduction for qualified business income (QBI), but that still leaves the effective tax rate at 29.6% (ie, higher than the C corp 21% tax rate).  Furthermore, the 20% QBI deduction is not allowed for most service businesses (except for partners or S corp shareholders whose taxable income is less than $315,000 ($157,500 if not married filing jointly), with the benefit phased out over that amount so it is totally lost once the partner’s taxable income equals $415,000 ($207,500 if not married filing jointly).  There are also other limitations that only generally allow the QBI deduction to be claimed if the business employs many people or owns depreciable tangible property (such as real estate).  Bottom line – you have to run the numbers.

3. The drawback to C corps, of course, is that they are subject to two levels of taxation, one at the corporate level on earnings and one at the shareholder level, for example, on dividends.  Dividends usually are taxed at the qualified dividend rate of 20%, though there is usually no preferential tax rate at the state and local level.  Dividends also may be subject to the 3.8% net investment income tax.  If only federal taxes are considered, the effective federal double tax rate is 39.8%.

This may be the deciding factor for many businesses.  If a business does not make distributions to its owners (for example, the owners generally take only salary and perks and profits are reinvested), then a C corp structure may result in income tax savings.  On the other hand, if the business distributes all of its profit out to its owners annually, then the double tax resulting from a C corp structure will be disadvantageous.

4. If the C corp accumulates cash, it can be subject to one of two penalty tax regimes – accumulated earnings tax and personal holding company tax.

Closely held C corps are subject to the personal holding company tax if 60% or more of their income is passive income, which they retain in the C Corp and do not distribute to their shareholders, though the personal holding company tax often can be avoided.  In addition, a C corp is subject to the accumulated earnings tax if it accumulates earnings beyond the reasonable needs of the business.

5. Sale of company.  If a company is sold, it is most often structured as an asset sale, which results in two levels of tax for a C corp – one tax to the corporation when it sells its assets in exchange for cash (or a note, etc.) and a second tax if the corporation is liquidated and the stockholders exchange their (low basis) shares for the sale proceeds.  For a company that may be sold in the near future, C corp status would be disadvantageous.  On the other hand, if there are no plans to sell the company (eg, children in the business), this may not be a concern.

The owner may consider whether he or she can own goodwill, client lists or other intangible assets in his or her own name rather than in the corporation to avoid double tax.  See Martins Ice Cream, Norwalk, and related tax cases on “personal goodwill.”

6. Step-up at death.  If an owner dies owning C corp stock, the stock will receive a step-up in basis to its fair market value.  This will avoid a shareholder level tax if the C corp liquidates.  However, it does not avoid a tax to the corporation on any appreciated assets that are distributed in liquidation or later sold by the C corp.

7. Losses.  If a partnership has losses that flow through to its partners, those losses would not flow through if the entity becomes a C corp, so C corp status would be disadvantageous.

8. Timing and related issues.  A company that is an LLC can elect to be treated as a corporation for tax purposes.  If a decision is made to terminate S corp or partnership status, then termination would have to be completed by March 15 to be effective this year.  Also, an S corporation that terminates its S status has a five year waiting period to convert back to S status.  If the C corp converts to S corp status in the future, then it may be subject to a built-in gain tax and other concerns if it later converts to an S corp and has accumulated earnings and profits.

If an S corp converts to a C corp, there is a two-year post termination period to take out AAA.  The Tax Reform bill provides that distiributions within this period will be partly treated as AAA (tax-free) and partly treated as previous C corp E&P (taxable 23.8 dividend).

Also, given the uncertainty surrounding the Tax Reform bill and the possibility that the rules could be changed again, some business owners may be reluctant to convert to C corp status and then get “stuck” if the rates or rules change.

9. Outbound foreign.  Under the new international tax rules, ownership of foreign corporations by a C corp rather than an individual has several advantages.  Dividends paid by a foreign corporation to a C corp can escape any tax while dividends paid to an individual are fully taxable.  If a foreign corporation has income that exceeds a base threshold amount (generally, 10% of the book value of its assets) and the foreign corporation does not distribute those excess earnings to its US shareholder, then the new “GILTI” tax applies to treat the US shareholder as receiving a deemed taxable dividend of that excess amount.  But C corps pay a lower tax rate on this income or may not pay any tax at all.

If you, as a business owner, are asking yourself, “Should I be a C corp?” note that there is not a “one size fits all” answer.  Have your CPA run the numbers using the new tax rules and rates.  Speak to your tax attorney to review the specifics of your situation.  Revisit this decision periodically.