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S Corporation: Form of business organization

An “S Corporation” is a corporation that elects to be taxed under Subchapter S of the Internal Revenue Code and receives IRS approval of its request for Subchapter S status. As a legal entity, the S corporation is separate and distinct from the corporation’s owners (the stockholders).

An S corporation can issue only one class of stock. Prior to January 1, 1997, an S corporation can have no more than 35 stockholders. In tax years beginning after December 31, 1996, the maximum number of eligible stockholders is increased from 35 to 75.

After December 31, 1996 a testamentary trust can hold S corporation stock for up to two years from the date of the grantor’s death. (Prior to January 1, 1997, the holding period is 60 days.) Generally, this change will make it easier to settle an estate where a testamentary trust is established and receives S corporation stock in the estate settlement process. Consult your attorney for advice and guidance on applications of this longer holding period to the administration of any testamentary trust that receives S corporation stock.

As a separate legal entity, the corporation finances and records are established and maintained completely separate and distinct from the finances and records of the stockholders. Through a resolution adopted at a stockholders meeting held in accordance with the bylaws of the corporation, one or more officers or employees of the corporation are authorized to conduct business on behalf of the corporation. The resolution typically includes an authorization with specified limits to borrow and repay funds as needed for business operations. Credit arrangements are made in the name of the corporation with loan documents signed by the authorized person or persons after the lender has received a certified copy of the authorizing resolution. If the corporation is newly formed, small (has few assets), or has a limited record of credit use, it’s likely that a lender will require personal guarantees by one or more officers or stockholders before approving a credit application received from the corporation. If personal guarantees are given, the signer(s) usually have unlimited liability for the debts of the corporation.

The Corporate Charter includes information on the purpose(s) for which the corporation is organized and the life of the corporation. (A corporation often has perpetual life.) Bylaws of the Corporation are the “rules” for conducting the organizational life of the corporation.

Moderate legal costs are incurred in setting up a typical S corporation and annual costs are incurred for stockholders meetings, tax return preparations, and preparing other yearly reports and summaries as needed for management and as desired by stockholders. Public notice of the formation and continued operation of a corporation is required and is accomplished through filings with the Secretary of State’s Office.