Eligibility to elect S corporation status
In order to elect S corporation status, a corporation must satisfy the following requirements:
- The corporation must be a domestic corporation that is organized under the laws of any state of U.S. territory.
- Maintain only one class of stock.
- Maintain a maximum of 100 shareholders.
- Shareholders may only be individuals, estates or certain qualified trusts.
- All shareholders must either be U.S. citizens or residents of the U.S.
How do the shareholders elect S corporation status?
The election of S corporation status is made by filing Form, "Election by a Small Business Corporation" and filed with the IRS Service Center where the corporation files its corporate federal income tax return. The election of the S corporation status must be unanimously approved by all of the shareholders, as evidenced by having all of the shareholders sign the Form.
When should the election be filed?
The Form must be filed on or before the 15th day of the 3rd month of the corporation's tax year in order for the election to be effective as of the beginning of that tax year. A corporation that is on a calendar tax year must file on or before March 15th in order for the election to be effective for that tax year.
Can the S corporation status be terminated?
S corporation status can be terminated either voluntarily or involuntarily.
- Involuntarily: An "S" corporation status is involuntarily terminated if any event occurs that would prohibit the corporation from making the election in the first place that is a "disqualifying event". For examples disqualifying event would include having more than 75 shareholders, a shareholder that is other than an individual, estate, or trust, or a shareholder who is a non-resident alien. Generally, the election is automatically terminated as of the date on which the disqualifying event occurs. However, if a corporation has both accumulated earnings and profits as well as passive investment income that exceeds 25 percent of the corporation's gross receipts for three consecutive years, the corporation election will be terminated beginning with the following tax year.
- Voluntarily: An S corporation election may be voluntarily revoked with the consent of shareholders holding more than 50 percent of the outstanding shares of stock (voting and nonvoting) on the day the revocation is made.
After termination or revocation can a corporation , re-elect S corporation status?
A corporation may not re-elect S corporation status until the 5th year after the year in which the termination or revocation became effective.
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