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LLC's and Taxes

Fred Vilbig - Friday, January 05, 2018

LLC's and Taxes

 

LLCs AND TAXES

     When I first started practicing law, we formed a lot of corporations.That was because corporations offered limited liability, and generally partnerships would not.The problem with a corporation, though, is that they are taxable entities (exclusive of S-corporations); they have to file annual reports with the state; and they have to have annual director and shareholder meetings (which, of course, most small businesses don’t do).It was kind of a pain.

     In order to at least reduce the tax burden on small businesses, Congress (followed by the states) allowed smaller corporations to be taxed as partnerships under Subchapter S, the S-corporation.There wasn’t a corporate tax, but the paperwork remained.

     In 1977, the State of Wyoming (of all places) did something very unusual. Their legislature came up with a new form of business entity that had limited liability like a corporation but otherwise acted like a partnership: no paperwork; no required meetings; and no company level taxation.The limited liability company was born!The idea caught on big time. When Hawaii adopted a similar law in 1996, all 50 states had some form of LLC law.Company profits generally flow through the business to the LLC members according to their percentage interest.

     Now it is pretty rare for us to see incorporated small businesses.Almost all small businesses are now formed as LLCs.In order to form an LLC, you first need to file Articles of Organization. The problem is that a lot of people just stop there.As I’ve written about before, the law requires an operating agreement.It doesn’t say what has to be in the operating agreement, but just that you must have one. A single member LLC operating agreement can be very basic. A multi-member LLC operating agreement is going to be more complex.

     Under current law, a single member LLC doesn’t even have to file a separate tax return.Instead, the company income just flows through to Schedule C of the owner’s Form 1040.With multi-member LLCs, they have to file a partnership tax return (a Form 1065)( unless they opt to be taxed as an S-corporation, in which case they file a Form 1120-S), and each member’s share of the profits and losses are reported on a Schedule K-1 and flow through to the individual owner’s return.

     The new tax law, the Tax Cuts and Jobs Act, includes a new deduction for LLC owners (actually it’s for any non-corporate business owner).Basically it’s a 20% deduction for “qualified business income,” subject to numerous calculations, including wage limitations.To me, along with the reduction in the corporate income tax, this seems the heart of the jobs and pro-business purpose of the new law.The problem is that the devil is in the details.It will be interesting to see how this plays out for small business owners.The limitations are designed to cut down on abuses, but there are a lot of wily characters out there.We’ll have to see how things work out.

     In any event, this new deduction should help small business owners, and given the competitive world we live in, they can use all of the help they can get.


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