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S CORPORATION EMPLOYMENT TAXES

        S Corporation Employment Taxes         

We get a number of questions regarding salaries and S corporations. The issue is the payment of FICA. If you take a distribution from the S corporation, no taxes are payable since all the income is already taxed to the shareholders. Take a salary and the income tax consequences are the same. The salary is taxable to you, but it reduces the income of the S corporation, so the net result is a wash.

 

Except for FICA. In 2016 you'll pay the full 7.65% (employee's share; the employer pays a like amount) on $118,500 plus an additional .9% on earnings above $200,000. Between the employee's and employer's share that is a minimum of $18,130 on any salary above $118,500.

So why take a salary? Because the law and the IRS say you have to.

 

So why take a salary? Because the law and the IRS say you have to. In a recent court case, the taxpayers took no salary from their S corporation. Instead, they withdrew funds by means of loans.

The corporation had no loan documents or other records showing the existence or amounts of the alleged loans and the corporation's tax returns did not show any loans on the balance sheet accompanying the tax return. The taxpayer and his son entered into agreements with the corporation that their sole compensation for services would be their share of corporate profits.

The IRS thought otherwise. It argued that the agreements should be disregarded as devices to avoid paying employment taxes and the amounts paid to or on behalf of the taxpayer and his son should be treated as employee wages for personal services rendered the corporation. Under IRC Sec. 3121(d) an employee means:

  1. any officer of a corporation, or
  2. any individual who, under usual common law rules

applicable in determining the employer-employee relationship, has the status of an employee.

The Court looked at the relationship between the taxpayers and the corporation and found that they were employees. After resolving that question, the Court had to determine what would be reasonable compensation. The Court looked at many of the same factors that courts look at when determining reasonable compensation when the IRS claims a shareholder/employee's compensation is too high. However, because the corporation here kept no books or records, the Court just accepted the IRS's determination. Had the corporation kept records the taxpayers could have argued that a lower amount was more appropriate.

How much salary should you take?  

That depends on the circumstances. If you do significant work for the corporation or are an officer, and report no salary, you're asking for trouble. In fact, not reporting an amount on the line 'Compensation of officers' is probably a tipoff to the IRS. They figure that every corporation has a officer that does some work for the corporation. It may be a small amount, but there should be something on that line.

Ok, you're resigned to reporting something. Now how much? That depends on the facts and circumstances. You might truly be a passive investor, have other interests, or spend only a minimal amount of time working for the corporation. If you keep a log of your hours, and you can put a dollar amount on them, you can compute the amount. For example, you have other interests so you only spend about 1,000 hours a year working in the business. The business is small and not very profitable. You could hire someone to do your job for $25 an hour. A salary in the area of $25,000 would be reasonable. Even a slightly lower amount would probably not be challenged.

On the other hand, you're the brains and reputation behind a four-man consulting business with profits of $350,000 a year and you take a $20,000 salary. Expect a problem from the IRS.

Justification for a low salary.

Here are some factors that might justify a low salary:

  • The business is losing money or only modestly profitable.
  • The business is in start-up mode and needs to reinvest the cash.
  • The business is very capital intensive and you've invested a large amount of equity capital. You're entitled to a return on the money.
  • Your salary is in line with what other employees in the same business and industry are getting for the same work and skill level.

Officers

The rule is that officers of the corporation that provide more than minor services are employees and must receive a salary. You might be able to avoid paying a salary to the corporate secretary who just sits in on board meetings twice a year and signs formal papers when the president or other signer is out of the office. But justifying the payment of no salary to the president will be difficult in most situations.

There are at least two situations where an officer probably need not be paid a salary. One is where the corporation is inactive. The other is where the activities of the business don't warrant any work from the officers. For example, you set up an S corporation solely to hold real property that's rented to another business. The work associated with the rental activities would be minimal.

Relatives

If relatives work for your business, many of the same rules apply. For example, your father is retired but works for the business 20 hours a week. The business pays him no salary. You, personally, pay some of his living expenses. The IRS could force you to pay him a salary.

Independent contractors and intercompany transactions

You may find yourself in a situation where you work for the S corporation in a capacity as an independent contractor. For example, you're the president and a 50% shareholder of Madison Inc., which owns a retail store. You're also a licensed plumber. You do extensive plumbing work in the store which you bill through your plumbing business. As long as the charge is based on an arm's length transaction, there should be no problems. Similarly, the corporation could be one of several related businesses where another corporation performs management functions for the other businesses. Again, the charge should be based on an arm's length transaction.

Summary

For S corporation shareholder/employees the worst approach you can take is to pay yourself no salary. That's probably an immediate tipoff. Even a salary that the IRS considers unreasonably low is better. Should the IRS re-characterize some of the distribution as salary, you stand a good chance of avoiding a negligence penalty.

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