Now Is the Time: Converting a C Corporation to an S Corporation or LLC

For closely held corporations that still have C status,1 the current uncertain economic environment, depressed asset values (especially in certain real estate markets), and historically low income tax rates on distributions to individuals (qualified dividends) from C corporations (which are scheduled to expire at the end of 2012)2 may present an opportunity to exit C status and its attendant double taxation at an acceptable current tax cost. Tax advisers should be talking to their C corporation clients about the opportunities that now exist to avoid substantial future taxes.

Tax Inefficiency of C Corporations

C corporations are taxed on their taxable income at federal rates up to 35%.3 Distributions of qualified dividends to individual shareholders are taxed again at a federal rate of 15%, and those dividends are not deductible by the corporation. Thus, the total federal tax rate on distributed earnings from a C corporation is 44.75% [(1 × 0.35) + (.15 × (1 – 0.35)]. If a corporation has elected to be an S corporation or a business is not operated in corporate form (e.g., partnership, limited partnership, or limited liability company (LLC)), there is only one level of taxation at the owner level, and a savings of 9.75% of taxable income, assuming the owners are individuals taxed at the highest individual rate.4 This difference is even greater when taking into account state taxation.

Managing Tax Inefficiency: Lowering Taxable Income

A usual approach to managing the inefficient taxation of C corporation operating income has been to pay as much of the income as possible to shareholder-employees in the form of compensation, which, unlike dividends, is deductible. Such an approach may reduce the taxable income of the C corporation to an acceptable level and result in the earnings being taxed only once at the shareholder-employee level. But this approach has its limitations.

Compensation must be reasonable: Sec. 162 allows a deduction for compensation that is (among other things) “reasonable.” Where a large percentage of corporate earnings is paid as compensation, particularly where the compensation is proportionate to shareholdings, the reasonableness of it may be difficult to defend.5 Moreover, while in some businesses high amounts of compensation as a percentage of corporate income may be reasonable (e.g., where personal services are the principal contributor to income, such as in a dental practice),6 in other businesses where capital is a principal contributor to income (e.g., rental real estate or manufacturing and sales with large capital investment), compensation that is a high percentage of pre-tax corporate income may be more difficult to justify.7

Shareholders may object to some compensation arrangements: Managing the level of corporate taxable income by paying compensation to shareholder-employees may be a difficult strategy to implement where there is more than one shareholder and the individual shareholder-employees do not believe that compensation payments that are proportionate to stockholdings accurately reflect their respective contributions to the success of the enterprise. Certain shareholders may be unwilling to agree to a compensation arrangement that they believe does not adequately reward their efforts or which they believe excessively rewards the efforts of others.

Compensation can be costly: Compensation is subject to payroll taxes, including Social Security and Medicare tax. The combined rate of Social Security and Medicare taxes payable by employers for 2012 is 7.65% on the first $110,100 of wages, and the combined rate for employees is 5.65%.8 For wages in excess of $110,100, the employer and employee are both subject to a Medicare tax of 1.45%.9

Even if double taxation of C corporation earnings can be acceptably and justifiably managed through payment of compensation to shareholder-employees, there remains the problem of managing double taxation of C corporation earnings when disposing of the C corporation itself or of its underlying business.

Managing Tax Inefficiency When Disposing of the Business

The management of the tax inefficiency of C corporations on the disposition of the business held in the corporation in an asset sale is a function of the double taxation of C corporation income and the concepts of “inside” and “outside” gain. Gain on the sale of the business assets (including corporate goodwill) is “inside gain” taxed at the corporate level. Outside gain is gain the shareholders have on the distribution of the after-tax sales proceeds from the sale of corporate assets. Inside and outside gain will also occur where appreciated assets are distributed to shareholders in exchange for their shares.

Double Taxation on C Corporation Liquidating Distributions

If a corporation sells all its assets and distributes the proceeds to its shareholders in a liquidating distribution, the corporation is subject to tax on the asset sale and the shareholders are subject to tax on the distribution. The distribution of assets in liquidation is treated at the corporate level in the same way as if the assets were sold for cash and the proceeds distributed to shareholders in exchange for their shares.10 The shareholders would also have a tax on their gain measured by the difference between the liquidation proceeds (or the net fair market value (FMV) of the assets if they are distributed in kind) and the basis of the shares in their hands.11 Thus, whether the C corporation sells all of its assets and distributes the proceeds in liquidation or distributes all of its assets in liquidation, the tax consequences to the corporation and its shareholders are substantially the same. In both cases, there is double taxation. In general, the federal double-tax rate of 44.75% (plus applicable state tax net of any federal benefit from deducting state tax) should apply if the shares of the corporation are a long-term capital asset in the hands of the shareholders. In considering these alternatives, both corporate and shareholder tax attributes such as net operating or capital loss carryovers should be considered.

Described above is how inside gain (gain at the entity level) and outside gain (gain at the owner (shareholder) level)cause double taxation of C corporation earnings on the sale of corporate assets. But what would be the result if the sale of the business took the form of a sale of the shares of the C corporation by the shareholders? Would double taxation be avoided?

Business Limitations and “Practical” Double Taxation on Share Sales

Before even getting to the tax implications of the sale of shares of the C corporation, the general reluctance of a buyer of a corporate business to buy the shares cannot be denied. A buyer who buys the shares could inherit undisclosed and perhaps even unknown liabilities. While seller warranties may assuage a buyer’s reluctance, they are only as comforting as the seller’s ability to make good on them. There are cases, however, where the buyer may have no choice but to buy shares rather than the underlying assets. This can occur, for example, where the corporation holds a valuable asset such as a lease that is not transferrable, or where the corporate charter itself has value, as in the case of a bank or insurance company.

If the disposition of the C corporation business takes the form of a sale of its shares rather than a sale of the business assets, it might at first appear that there is only one level of taxation. The shareholders would pay tax on gain equal to the difference between the sales price and their basis in their shares.12 Assuming that the shares are long-term capital gain property, the shareholders would face only a 15% federal tax. This is a good result as far as it goes, but it does not go far enough. There is still “practical” or “economic” double taxation because the share sale shifts the problem of “inside” or corporate-level gain to the buyer.

The buyer of the C corporation shares would have a basis in those shares equal to the amount paid (assuming FMV was paid),13 but the assets of the C corporation (inside basis) would remain their historic basis.14 Thus, the difference between that historic basis and the FMV of those historic assets remains subject to tax upon disposition or carries a tax cost in the form of reduced future depreciation or amortization. Financial accounting recognizes this by requiring a deferred tax liability to be set up in the accounts of the post-acquisition entity.15

In essence, the buyer who buys shares will inherit a deferred tax liability (in the form of future tax on the sale of the low-basis assets or reduced tax-deductible cost recovery) and will expect to be compensated for that increased cost by way of a reduced price for the shares. The buyer might demand that the price be reduced by what would otherwise be the present value of the entire deferred tax liability. Such a reduction in purchase price would put the buyer and seller in approximately the same position as they would have been in had the C corporation sold assets and the selling shareholders absorbed the corporate-level tax. Alternatively, the buyer and seller may agree on a purchase price that results in each of them bearing a portion of the deferred tax liability.

Obviously, the greater the difference between the FMV of C corporation assets and their basis in the hands of the C corporation (inside appreciation), the greater the potential problem of double taxation of that inside appreciation. If such appreciation is likely to get larger in the future because current values are depressed, this may be the time to exit C status.

Exiting C Status, Generally

There are two strategies for exiting C status.16 Each of these strategies involves the conversion of the C corporation to a passthrough entity. In general, the income, deduction, gain, loss, and credit of the passthrough entity pass through to its owners, and the entity itself is not subject to tax.17 The first, and least expensive exit strategy, is to convert to S corporation status.18 But, as more fully discussed below, S corporation status may not be a suitable alternative for every C corporation and its shareholders. When S status is not achievable or its requirements are not compatible with other needs of the business and its shareholders, a second strategy is available. The C corporation can convert to an LLC and continue its operations in that form.19

Exiting C Status by Making an S Election

The easiest and least costly method to exit C status is to convert to S corporation status, but that has its limitations and may not be possible or desirable in all situations.

Electing S corporation status: The shareholders of a C corporation may elect S status and, in general, the corporation will avoid a corporate-level federal tax on its operating income or on gain resulting from the sale of its business. Items of income, deduction, gain, loss, and credit are generally taken into account only by the shareholders and not by the corporation in computing taxable income and tax. A favorable aspect of an S election is that in many cases it takes a corporation out of C status and its attendant double taxation without a tax consequence.

Eligible C corporations: Not every C corporation is eligible to be an S corporation. There are shareholder requirements, a capitalization requirement, requirements for corporations with accumulated earnings and profits where the corporation has certain levels of passive income, and requirements relating to the corporation itself.

Corporate requirements: Only domestic corporations that are not (1) financial institutions using the Sec. 585 reserve method of accounting for bad debts, (2) insurance companies taxable under subchapter L, (3) possessions corporations, or (4) DISCs or former DISCs can qualify for S status.20

Shareholder requirements: An S corporation cannot have more than 100 shareholders.21 Only individuals who are U.S. citizens or residents,22 certain estates,23 certain trusts,24 and certain tax-exempt organizations25 can be shareholders of an S corporation.

Capitalization requirement: S status is available only to corporations with one class of stock outstanding26 (differences in voting rights among the shares of common stock do not violate the one class of stock requirement).27 The one class of stock requirement can become problematic and a serious limitation where there is a need or desire for special allocations of corporate earnings to certain shareholders (e.g., certain shareholders would like a preferred return on their shares). In general, a corporation has only one class of stock for these purposes if all outstanding shares confer identical rights to distributions and liquidation proceeds. However, otherwise ordinary commercial transactions between the corporation and a shareholder, such as compensation arrangements and leases, with a principal purpose to circumvent this requirement, can violate the one class of stock requirement.28

Unless certain safe-harbor requirements are met, the one class of stock rule can also be a problem where financing arrangements include consideration in the form of equity-based payments including “equity kickers” or options to buy shares.29 Careful analysis is required where shareholders are not treated identically or where lending arrangements include some form of equity interest.

Requirements Relating to Corporations With Earnings and Profits and Passive Income

An S corporation can be subject to tax at the corporate level30 and its S status terminated31 if it has certain amounts of passive income and also has earnings and profits accumulated during years when it was a C corporation. For this purpose, passive income includes rents, royalties, interest, annuities, and dividends.32 This problem may be avoided if the earnings and profits can be purged by distribution to the shareholders as dividends. With the 15% federal tax rate on dividends in effect for this year, an earnings and profits purge in 2012 may be a tax-efficient way to remove those earnings from corporate solution at a favorable tax rate.

Limitations on S Election Tax Efficiencies

Corporate-level tax on built-in gain: The excess of the FMV of assets over their adjusted basis at the time of the S election is built-in gain. Any of this built-in gain recognized during the 10-year period beginning with the first day of the first tax year for which the corporation was an S corporation remains subject to corporate-level tax.33 Only the excess of the FMV of those assets over their respective tax basis is subject to this corporate-level tax. Post-election appreciation is subject to only one level of taxation.34 Thus, it is essential that an appraisal of all assets be performed at the time of the S election to document the assets on hand and to keep track of their future sale.

Appraisal of all assets means all assets, even assets that are not reflected on the corporation’s balance sheet, including self-created intangibles, such as goodwill and going-concern value, and patents and trademarks, the costs of which have been expensed. The appraisal process should be similar to that undertaken when allocating an FMV purchase for an entire business among its various assets. The importance of accurate appraisals cannot be overemphasized. There are severe civil penalties for misstating the value of property.35

Tax efficiency—income from operations: In general, S corporation earnings are subject to tax only at the shareholder level except for the tax on built-in gain. However, the tax on built-in gain does not necessarily present a problem for all corporations. For example, it might not be an issue for a service corporation where income is not earned through the regular sale of property or a corporation in the real estate rental business (where the income was from an active trade or business) and the intent was to hold assets for the long term.36

Salaries and wages paid to S corporation shareholder-employees are subject to payroll tax, which has caused some S corporations to pay little or no salary to shareholder-employees, hoping to avoid payroll tax. The IRS is well aware of this strategy, and works aggressively to prevent its use. Unreasonably low salaries paid to S corporation shareholder-employees who hope to withdraw income from the corporation as distributions rather than compensation to avoid the payroll tax will likely be challenged by the IRS, resulting in the recharacterization of some portion of dividend distributions to the shareholder-employees as compensation.37

Tax efficiency—income from disposition of the business: Subject to the tax on built-in gain, the sale of the S corporation’s business is generally not subject to a corporate-level federal income tax. It is important to note that post-election appreciation in value is not subject to the corporate-level built-in gain tax, and after the election has been in effect for 10 years, the built-in gain tax no longer applies. In addition to there being only one level of taxation on the actual sale of the assets, where desirable, it is possible to sell the shares of the S corporation and for the buyer and seller to jointly elect to treat the transaction as an asset sale.38 This elective treatment accommodates situations where certain assets of the corporation are not transferrable or where the S corporation’s charter has value in and of itself.

S election mechanics and miscellaneous concerns: The S election requires the shareholders’ unanimous consent39 and is effective for any year if made in the prior year or on or before the fifteenth day of the third month of the year.40 Documentation of the filing of those elections should be made a permanent part of corporate records.41

In general S corporations must use the calendar year, but a fiscal year is possible in certain circumstances.42 It is important that there be shareholder agreements that bar unilateral action by a shareholder that would cause the S election to be revoked. This could occur, for example, if a shareholder transferred his shares to an ineligible person such as a nonqualifying trust. In addition, shareholder agreements should deal with distributions of cash to pay tax on S corporation earnings. The shareholders are liable for income tax on their distributable shares of S earnings whether they are distributed or not. Therefore, agreements should be in force to require distributions of at least enough cash to cover those tax liabilities.

Since, in general, the shareholders of an S corporation are taxable on the income of the S corporation, the tax-compliance burden may be increased. Each shareholder may be required to file individual tax returns and pay individual tax and estimated tax in each state in which the S corporation does business.

It is also important to determine the manner in which each state where the S corporation is liable for tax treats S corporations generally. Some states do not recognize S corporations as passthrough entities (all income is taxed at the corporate level),43 and some states have a hybrid approach.44 Some states require withholding on income of nonresident shareholders of S corporations.45 It is also important to determine whether a shareholder may claim a credit on his resident state income tax return for his nonresident state income tax on his share of the S corporation’s income. An analysis of state tax responsibilities is essential.

For corporations with foreign subsidiaries, there must be additional planning to best use U.S. foreign tax credits.

The S Election Exit From C Status: Summary

The S election can be an efficient and inexpensive way to exit C status and its double taxation on operating income and upon the sale of the business. However, it is not the ideal solution in every situation.

Limitations on the number of shareholders, the characteristics of the persons who can be shareholders, and restrictions on the capital structure impose limitations on the availability of S status. If S corporation status is not feasible, a company may be able to achieve the desired results by converting to an LLC.

Exiting C Status by Converting to an LLC

If a C corporation is not a candidate for an S election because of the requirements for S status discussed above, the current economic environment and depressed values for assets as well as historically low individual income tax rates on qualified dividends and long-term capital gains may make conversion to an LLC an acceptable exit strategy. The major difference between the exit from C status by conversion to S status and the exit from C status by converting to an LLC is that the latter has immediate tax consequences, which the corporation and its owners must evaluate in light of the future potential tax savings.

Income Tax Consequences of Converting a C Corporation to an LLC

In general, an LLC with one owner is disregarded for federal tax purposes and is treated as a sole proprietorship, branch, or division of the owner,46 and an LLC with more than one owner is classified as a partnership for federal tax purposes.47 Therefore, a conversion from C to LLC is not merely a change in the tax status of a corporation; it involves liquidating the C corporation and transferring the C corporation’s assets to an entity treated as a partnership (if the C corporation had more than one shareholder) or a disregarded entity (if the C corporation had only one shareholder).

The mechanics of a conversion from a C corporation to an LLC can take one of four forms:

Assets up: In the assets up form of conversion, the C corporation is liquidated and its assets are transferred to its shareholders who then transfer them to the LLC. (See Exhibit 1.)

Interests over: In the interests over form, there is an actual transfer of the shares of the C corporation to an LLC (which is then the sole shareholder of the C corporation) followed by an actual liquidation of the C corporation with its assets being distributed to the LLC. (See Exhibit 2.)

Assets over: In the assets over form, the C corporation transfers its assets to an LLC in exchange for all the interests in the LLC, followed by an actual liquidation of the C corporation in which the C corporation distributes the LLC interests to its shareholder. (See Exhibit 3.)

Merger or statutory conversion under state law: The merger of a C corporation into an LLC or its statutory conversion into an LLC under applicable state law are forms of conversion available in only some states. Where allowed, a C corporation can merge into an LLC or can be converted to an LLC by election. 48 (See Exhibits 4 and 5.)

Analysis of Income Tax Consequences and Other Considerations

Assets up: The assets up form is a liquidation of the C corporation, which is a taxable event at the corporate level measured by the difference between the FMV of the corporation’s several assets and their respective bases.49 The shareholders will recognize gain to the extent of the excess of the FMV of the assets distributed in liquidation over the basis in their shares.50 The basis of the assets in the hands of the shareholders will be their FMV upon distribution from the corporation.51 The contribution of that property to the LLC is generally not a taxable event,52 and the property’s basis in the hands of the LLC is the same as it was in the hands of the LLC member (former C corporation shareholder).53

Interests over: In the interests over form, the shareholders’ transfer of their C corporation shares to an LLC is generally not a taxable event,54 and the basis of the C corporation shares in the hands of the LLC is the same as the shareholders’ bases in those shares.55 The members’ bases (former shareholders) in their LLC interests is the same as their bases in C corporation shares.56 Upon the liquidation of the C corporation, the tax consequences are the same as the liquidation of the C corporation in the assets up approach. The C corporation will recognize gain. The LLC will also recognize gain, but that gain will be taxable at the member level,57 and the members’ bases in their membership interests will increase by their share of that taxable income.58 Thus, the basis of the assets of the C corporation in the hands of the LLC will be FMV, and the basis of the LLC interests in the hands of the member(s) will reflect the FMV of the assets. If there is only one shareholder of the corporation so that the LLC is disregarded, the result should be the same and the assets up analysis should apply.

As more fully discussed below, the IRS seems to take the position that the assets up approach requires an actual transfer of assets (rather than a transfer of an interest in an LLC). In the case of the interests over approach, the assets of the C corporation are actually transferred to the LLC whether or not the LLC is a disregarded entity. The only difference is whether the member(s) of the LLC (former shareholder(s) of the corporation) will be taxed on the distributions from the liquidation corporation directly because the LLC is disregarded or as partners in a partnership because the LLC is classified as a partnership.

Assets over and statutory merger or state law elective conversion: In Letter Ruling 200214016,59 the IRS concluded that a statutory merger of a C corporation into an LLC under applicable state law should be analyzed as an assets over transaction. The C corporation was considered to have transferred all of its assets to a newly formed LLC in exchange for LLC interests (at that point the C corporation was the only member) and the LLC’s assuming the C corporation’s liabilities. The LLC interests were considered to be distributed to the shareholders in liquidation of the C corporation. The C corporation had more than one shareholder, and the resulting entity was held to be a partnership.

The ruling is silent on whether an election under Sec. 754 was made or could be made.60 The IRS appears to be applying the assets over default provisions of Regs. Sec. 1.708-1(c)(3), which require an actual transfer of partnership assets for the assets up form to be followed.61 Where the facts are similar to those of Letter Ruling 200214016 and there is a distribution of an interest in a disregarded entity that becomes a partnership upon the receipt of interests by more than one shareholder in exchange for his shares, the availability of a Sec. 754 election is appropriate since the shareholders have acquired a partnership interest even if a partnership interest was not distributed by the corporation.62 In the case of a single-shareholder corporation, the distribution of the LLC should be viewed as the distribution of the assets of the corporation to the shareholder in liquidation, and the assets up analysis should apply.63

In an elective statutory conversion of a C corporation to an LLC, the same analysis should apply. Regs. Sec. 301.7701-3(g)(1)(iii) treats the elective conversion of an association taxable as a corporation to a disregarded entity as a distribution of all of its assets and liabilities to its single owner in liquidation of the corporation (assets up). While such an elective conversion of a domestic corporation is not permissible,64 the practical consequences of an elective state law conversion of a corporation to an LLC are the same as an elective conversion for tax purposes under Regs. Sec. 301.7701-3(g)(1)(iii). It is not clear whether the IRS would treat the state law elective conversion of a multishareholder corporation to an LLC the same way it treated the merger of the corporation into the LLC in Letter Ruling 200214016. Prudence would suggest that, in the case of a multishareholder corporation, careful consideration should be given to a Sec. 754 election.

Self-employment tax consequences: Where the business of the C corporation continues as an LLC, it is possible that all of the income of the enterprise can be subject to self-employment tax. This may not be a substantial problem where the shareholder(s) of the C corporation has been paid compensation at or above the wage base.

Summary and Analysis of Tax Cost

It is clear that the form of the conversion from C to LLC can be very important to the tax outcome for the shareholders. Since the conversion is a taxable event at the corporate and shareholder levels, it is important that the form allows a step-up to FMV of the assets formerly held by the corporation.

In the context of a multishareholder corporation, the IRS has taken the position that the merger of a corporation into an LLC should be analyzed as an assets over transaction. It may take the same position for an elective statutory conversion. In those situations, careful consideration must be given to an election under Sec. 754. In the context of a single-shareholder corporation that converts to a single-member LLC by way of a state law merger or state law election, the assets up analysis appears most appropriate.

Analysis of Tax Cost

Since the conversion of a C corporation to an LLC is a taxable event, it is necessary to analyze whether the current tax cost of the conversion is less than the present value of the future tax cost of double taxation of C corporation earnings and the present value of the future tax cost of disposing of the C corporation’s business. In making this analysis, it is necessary to consider whether and to what extent the assets of the C corporation will appreciate in value and how much operating income the C corporation will generate over a period of years, as well as the possibility of managing double taxation by paying tax-deductible compensation to shareholder-employees. In addition, some assumptions will have to be made about future tax rates, and appraisals will have to be obtained to establish and document the FMV of the business.

If the value of the assets in excess of their basis is sufficiently small and those assets are expected to appreciate in value, the cost upon conversion and the opportunity cost of the current payment of tax may not be too expensive in light of the tax savings on future appreciation. In addition, the existence of favorable tax attributes at the corporate level might reduce the current tax cost. Since the tax consequences of conversion are based on FMVs and the transactions are not between unrelated parties dealing at arm’s length, it is imperative to obtain bona fide appraisals to support the FMV that is used to determine gain. There are severe penalties for misstating the value of assets.

Conclusion

Double taxation of C corporation income from operations and from the sale of its business make C status tax inefficient. Changes in federal tax law scheduled to take effect in 2013 would worsen this tax inefficiency. The owners of a C corporation can avoid the tax inefficiency of the C corporation form by converting the corporation to S corporation status or converting it to an LLC.

While converting to an S corporation may be able to be accomplished without a current tax cost, converting a C corporation to an LLC can result in current tax at the corporate and shareholder level. Nevertheless, that current tax cost may be far less than the future tax cost of operating the business in a C corporation and incurring double taxation at what may be higher tax rates, or of incurring the higher tax cost (or reduced value) on a disposition of the business and the attendant double taxation of any appreciation in the value of the business. Since individual tax rates on qualifying dividends from C corporations and on capital gains are at historically low rates, this is may be the time to exit C status.

Editor’s Note: This article won the 2012 Best Article Award.

Footnotes

¹ Referring to corporations that are subject to tax under Secs. 301 through 385.

² The current federal income tax rate on qualifying dividends is 15% (or less in certain circumstances) (Sec. 1(h)(1)(B)). This tax rate is set to expire or “sunset” after 2012 (Economic Growth and Tax Relief Reconciliation Act of 2001, P.L. 107-16, §901). Absent a legislative change, the individual income tax rate on dividends will be the same rate imposed on ordinary income. In a similar fashion, the current 15% individual income tax rate on long-term capital gains will rise to its pre-2002 rate of 20%. In addition, beginning in 2013 the Health Care and Education Reconciliation Act of 2010, P.L. 111-152, imposes a 3.8% tax on the net investment income of certain individuals.

³ Sec. 11(b).

⁴ The highest current ordinary income tax rate imposed on individuals is 35% (Sec. 1). This is scheduled to increase to 39.6% in 2013. See note 2 above.

⁵ Regs. Sec. 1.162-7(b)(1); O.S.C. & Assocs., Inc., 187 F.3d 1116 (9th Cir. 1999).

⁶ La Mastro, 72 T.C. 377 (1979).

⁷ Labelgraphics, Inc., 221 F.3d 1091 (9th Cir. 2000).

⁸ IR-2012-27. The Middle Class Tax Relief and Job Creation Act of 2012, P.L. 112-96, enacted Feb. 22, 2012, extended a two-percentage point reduction in the employee share of payroll tax through the end of 2012.

⁹ Sec. 3101(b).

¹⁰ Sec. 336(a).

¹¹ Secs. 331(a) and 1001.

¹² Sec. 1001.

¹³ Sec. 1011.

¹⁴ Sec. 338. Absent an affirmative election to treat the share sale as an asset sale with attendant tax consequences, there is no change in “inside” basis as a result of a share sale.

¹⁵ FASB Statement No. 109, Accounting for Income Taxes, ¶30.

¹⁶ This article addresses only the federal income tax consequences of exiting C status. The tax law of each jurisdiction in which the corporation is subject to tax must be consulted and considered. Where the C corporation (or its subsidiaries) is subject to tax in jurisdictions outside the United States, both foreign tax law and U.S. tax law as it applies to the foreign activities of U.S. taxpayers must also be taken into account.

¹⁷ Sec. 701 (relating to partnerships); Sec. 1366 (relating to S corporations).

¹⁸ Secs. 1361–1379.

¹⁹ While the business formerly operated in a corporation could operate as a sole proprietorship, general partnership, or limited partnership, we believe that the limited liability company is the entity of choice for operating a business outside of corporate solution.

²⁰ Secs. 1361(b)(1) and (b)(2).

²¹ Sec. 1361(b)(1)(A). The 100-shareholder limitation is relaxed by rules that permit members of a family (as defined) to be treated as one shareholder (Sec. 1361(c)(1)).

²² Sec. 1361(b)(1)(C).

²³ Secs. 1361(b)(1)(B) and (c)(3).

²⁴ Secs. 1361(c)(2), (d), and (e).

²⁵ Sec. 1361(c)(6).

²⁶ Sec. 1361(b)(1)(D).

²⁷ Sec. 1361(c)(4).

²⁸ Regs. Sec. 1.1361-1(l)(2)(i).

²⁹ Regs. Sec. 1.1361-1(l)(4)(ii).

³⁰ Sec. 1375.

³¹ Sec. 1362(d)(3).

³² Sec. 1362(d)(3)(C)(i); Regs. Sec. 1.1362-2(c)(5)(ii). Such passive income may not be problematic if earned in an active trade or business.

³³ Sec. 1374(d)(7). For tax years beginning in 2011, the 10-year period was shortened to five years (Small Business Jobs Act of 2010, P.L. 111-240, §2014(a)).

³⁴ Sec. 1374(d)(2).

³⁵ Sec. 6662(e).

³⁶ The 10- or 5-year period, as the case may be. See note 33 above.

³⁷ Rev. Rul. 74-44, 1974-1 C.B. 287; Spicer Accounting, 918 F.2d 90 (9th Cir. 1990).

³⁸ Sec. 338(h)(10); Regs. Sec. 1.338(h)(10)-1(b)(4).

³⁹ Sec. 1362(a)(2).

⁴⁰ Sec. 1362(b).

⁴¹ The election is made by filing Form 2553, Election by a Small Business Corporation.

⁴² Sec. 1378.

⁴³ See, e.g., N.H. Rev. Stat. §77-A:1(IIIb).

⁴⁴ For example, Massachusetts, which imposes a corporate-level tax when receipts exceed a certain amount. See Mass. Gen. Laws ch. 63, §32D.

⁴⁵ See, e.g., R.I. Gen. Laws §44-11-2.2(3)(b).

⁴⁶ It is beyond the scope of this article to discuss state income tax consequences of the conversion of a C corporation to an LLC; nevertheless, the state tax consequences must be considered and evaluated when planning such conversions.

⁴⁷ Regs. Sec. 301.7701-2. Regs. Sec. 301.7701-3(a) allows an election to treat an LLC as a corporation.

⁴⁸ See, e.g., New York Bus. Corp. Law §901 (merger) and R.I. Gen. Laws
§7-16-5.1 (election).

⁴⁹ Sec. 336.

⁵⁰ Secs. 331 and 1001.

⁵¹ Sec. 334(a).

⁵² Sec. 721(a). Under Sec. 721(b), gain may be recognized if the LLC would qualify as an investment corporation within the meaning of Sec. 351 if the partnership was incorporated.

⁵³ Sec. 723. The partnership’s basis is increased by any gain recognized under Sec. 721(b) by the contributing partner.

⁵⁴ Sec. 721. Although a transfer to a partnership that is an investment company within the meaning of Sec. 351 would not be tax free under Sec. 721(b), the gain recognized to the shareholders of the C corporation would be reflected in their LLC interests under Sec. 722, and the basis of the C corporation shares in the hands of the LLC would be their fair market value. Upon liquidation of the C corporation, there would be gain recognized at the corporate level but not at the shareholder level since the gain was recognized on the transfer to the LLC.

⁵⁵ Sec. 723. If the LLC is an investment company within the meaning of Sec. 351, the LLC’s basis is increased by any gain recognized under Sec. 721(b) by the contributing partner.

⁵⁶ Sec. 722. If the LLC is an investment company within the meaning of Sec. 351, the member’s basis is increased by any gain recognized under Sec. 721(b) by the contributing partner.

⁵⁷ Sec. 701.

⁵⁸ Sec. 705.

⁵⁹ IRS Letter Ruling 200214016 (4/5/02).

⁶⁰ Where a partnership interest is acquired in a taxable transaction, an election under Sec. 754 permits the inside basis of partnership assets to be adjusted to reflect the outside basis of the partnership interest. The election is irrevocable and in subsequent acquisitions of partnership interests can cause a downward adjustment of the basis of partnership assets.

⁶¹ Regs. Sec. 1.708-1(c)(3)(i).

⁶² Regs. Sec. 301.7701-3(f)(2).

⁶³ Rev. Rul. 99-5, 1999-1 C.B. 434; Assoc. Chief Counsel Legal Advice AM 2012-001.

⁶⁴ Regs. Secs. 301.7701-3 and 301.7701-2.