Changing Business Structures
If you incorporate a sole proprietorship or form a partnership, you must get a new EIN. However, do not apply for a new EIN if; You change only the name of your business, A partnership declares bankruptcy, A corporation chooses to be taxed as an S corporation, You elected on Form 8832 Entity Classification Election, to change the way the entity is taxed, or You change the location of the partnership or add locations. Note: If you are electing to be an S corporation, be sure to file Form 2553, Election by a Small Business Corporation.
A sole proprietorship is an unincorporated business that is owned by one individual. It is the simplest form of business organization to start and maintain. The business has no existence apart from you, the owner. Its liabilities are your personal liabilities. You undertake the risks of the business for all assets owned, whether used in the business or personally owned. You include the income and expenses of the business on your own tax return.
A partnership is the relationship existing between two or more persons who join to carry on a trade or business. Each person contributes money, property, labor, or skill, and expects to share in the profits and losses of the business. A partnership must file an annual information return to report the income, deductions, gains, losses etc., from its operations, but it does not pay income tax. Instead, it "passes through" any profits or losses to its partners. Each partner includes his or her share of the partnership's income or loss on his or her tax return. Partners are not employees and should not be issued a Form W-2. The partnership must furnish copies of Schedule K-1 (Form 1065) to the partners by the date Form 1065 is required to be filed, including extensions.
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. A Regular "C" Corporation files it's own income tax return and pays it's own taxes on profits. This results in the old "double taxation" standard you may have heard about. After the corporation pays taxes on the profits, the shareholders may have to pay tax again when those profits are distributed to them (usually distributions occur in the form of dividends).
An eligible domestic corporation can avoid double taxation (once to the shareholders and again to the corporation) by electing to be treated as an S corporation. Generally, an S corporation is exempt from federal income tax other than tax on certain capital gains and passive income. On their tax returns, the S corporation's shareholders include their share of the corporation's separately stated items of income, deduction, loss, and credit, and their share of non-separately stated income or loss.
Limited Liability Company (LLC)
A Limited Liability Company (LLC) is a relatively new business structure allowed by state statute. LLCs are popular because, similar to a corporation, owners have limited personal liability for the debts and actions of the LLC. Other features of LLCs are more like a partnership, providing management flexibility and the benefit of pass-through taxation. Owners of an LLC are called members. Since most states do not restrict ownership, members may include individuals, corporations, other LLCs and foreign entities. There is no maximum number of members. Most states also permit single member LLCs, those having only one owner. A few types of businesses generally cannot be LLCs, such as banks, insurance companies and nonprofit organizations. Check your state's requirements and the federal tax regulations for further information. There are special rules for foreign LLCs.
The federal government does not recognize an LLC as a classification for federal tax purposes.
An LLC business entity must file as a corporation, partnership or sole proprietorship tax return. An LLC that is not automatically classified as a corporation can file Form 8832 to elect their business entity classification. A business with at least 2 members can choose to be classified as an association taxable as a corporation or a partnership, and a business entity with a single member can choose to be classified as either an association taxable as a corporation or disregarded as an entity separate from its owner, a "disregarded entity." Form 8832 is also filed to change the LLC's classification.
Effective Date of Election
The election to be taxed as the new entity will be in effect on the date the LLC enters on line 8 of Form 8832. However, if the LLC does not enter a date, the election will be in effect as of the form's filing date. The election cannot take place more than 75 days prior to the date that the LLC files Form 8832 and the LLC cannot make the election effective for a date that is more than 12 months after it files Form 8832. However, if the election is the "initial classification election," and not a request to change the entity classification, there is relief available for a late election (more than 75 days before the filing of the Form 8832).