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Set Up an S Corporation in California

How to Set up an S Corporation in California can be an advantageous move for small business owners seeking tax benefits and limited liability protection. An S Corporation combines the liability protection of a corporation with the tax advantages of a pass-through entity, allowing profits and losses to pass through to the shareholders’ personal tax returns. Here’s a comprehensive guide on how to set up an S Corp in California, covering everything from the initial steps to ongoing compliance requirements.

What is an S Corporation?

An S Corporation is a special type of corporation that elects to pass corporate income, losses, deductions, and credits through to their shareholders for federal tax purposes. This pass-through taxation eliminates the double taxation often associated with C Corporations, where both the corporation and shareholders are taxed on income.

Benefits of S Corporation Status

Steps to Set Up an S Corporation in California

Steps to Set Up an S Corporation in California

1. Choose a Business Name

Select a unique business name that complies with California’s naming requirements. The name must not already be in use by another business entity in California and should end with “Corporation,” “Incorporated,” or an abbreviation like “Corp.”

2. File Articles of Incorporation

Prepare and file Articles of Incorporation with the California Secretary of State. Include essential information such as the corporation’s name, address, registered agent, purpose, and number of authorized shares. You can file online or by mail, along with the required filing fee.

3. Selecting board members

Similar to a C Corporation, an S Corporation necessitates the presence of a board of directors. These directors act as representatives of the company and are responsible for making decisions on behalf of the shareholders. If your S Corp boasts more than three shareholders, it’s imperative to designate a minimum of three directors. Conversely, S Corporations with fewer than three shareholders are obligated to assign one director per shareholder.

Consequently, if you operate a solo enterprise, you have the option to fulfill the entire board of directors’ role yourself. Nonetheless, it may be advantageous to enlist the assistance of individuals possessing business acumen or industry knowledge to serve on your board. Potential candidates could include:

The process of appointing directors entails their election by the shareholders and their inclusion in corporate documentation, such as the bylaws. Furthermore, S Corporations are mandated to conduct board meetings regularly. Even if you function as the sole director, shareholder, and employee of your business, adherence to this requirement remains essential. Consequently, you are obliged to submit meeting minutes along with your corporate documentation annually to uphold the S Corp status.

4. Draft Corporate Bylaws

Create corporate bylaws outlining the internal rules and procedures for operating your S Corporation. These bylaws typically cover shareholder meetings, director responsibilities, and other corporate governance matters.

5. Conduct a Board of Directors Meeting (mandatory)

Initiate your inaugural board of directors meeting, where pivotal decisions regarding the corporation’s operations will be made. During this session, the board can undertake various essential tasks, including but not limited to adopting corporate bylaws, appointing corporate officers, authorizing stock issuance, establishing the corporation’s fiscal year, and executing other pertinent matters.

At this juncture, it is imperative for the board of directors to formally approve the election of S corporation status. The deliberations and resolutions reached during the meeting must be meticulously documented in the corporate minutes, typically provided with corporate kits frequently obtained by corporations.

6. Issuing Stock (mandatory)

A stock certificate serves as tangible evidence of ownership in a corporation. Typically, shares are allocated in exchange for various contributions such as cash, property, or services, thereby constituting the initial operating capital of the corporation. The board of directors determines the price of each share, often advisable to be executed in conjunction with a stock purchase agreement. Subsequently, after the issuance of stock, the corporation can proceed with its inaugural annual shareholders meeting.

In instances where communal assets are utilized for stock acquisition, particularly in the context of marriage, it may necessitate obtaining spousal consent via a consent form.

Considerations regarding Securities Laws: Issuing stock implicates intricate federal and state securities laws. In California, subject to eligibility criteria, filing a Limited Offering Exemption Notice (LOEN) under Cal. Corp. Code section 25102(f) is advisable to assert exemption from specific California securities laws. Moreover, under federal law, if shares are allocated to ten or fewer active participants in business management, the corporation generally qualifies for exemptions from securities registration requirements. However, it is prudent to seek legal counsel for comprehensive guidance on this matter.

In scenarios involving founders’ shares vesting over time, founders may contemplate filing a Section 83(b) with the IRS.

7. Issue Stock Certificates

Issue stock certificates to each shareholder to document their ownership interest in the corporation. Maintain accurate records of stock ownership for compliance and tax purposes.

8. Fulfill Remaining Federal Requirements

California-based corporations are obligated to adhere to federal regulations in addition to state laws. For instance, corporations must procure a federal Employer Identification Number (EIN). 

In general, corporations are liable for federal taxes. However, S corporations are exempt from paying income tax. S corporations are entities that opt to transmit corporate income, losses, deductions, and credits to their shareholders for federal tax purposes. This strategic decision allows S corporations to circumvent the issue of double taxation on corporate income. S corporations with multiple owners are required to file an information tax return with the IRS.

9. Obtain Local Business License and Comply with Local Regulations (mandatory)

Different localities impose distinct regulations governing businesses within their jurisdiction. Many cities in Southern California necessitate the acquisition of a business license to conduct operations within their boundaries. This process can range from submitting a simple form to undergoing a more intricate approval procedure involving various local governmental entities.

For instance, enterprises operating within the City of Los Angeles must procure a business license from the municipal authorities. 

Aside from obtaining the requisite business permit or license, localities may impose additional fees and stipulate adherence to specific regulations.

Given the variances across localities, it is prudent to seek counsel from experienced professionals before commencing operations. The legal experts at Theta Law Firm can provide guidance through the intricacies of laws at a reasonable cost.

10. Considerations for Foreign Corporations

Corporations established outside of California must register with the California Secretary of State by submitting a Statement and Designation by Foreign Corporation form. The filing fee amounts to $100. Additionally, a Certificate of Good Standing from the corporation’s original state of formation (not older than six months) must be furnished. If the desired corporate name is unavailable in California, an assumed name must be provided.

Effective January 1, 2013, foreign corporations seeking to conduct business in California must disclose the street address of their principal business office in California, if applicable.

11. Apply for an Employer Identification Number (EIN)

Obtain an Employer Identification Number (EIN) from the Internal Revenue Service (IRS). This unique nine-digit number is used to identify your S Corporation for tax purposes, hiring employees, opening bank accounts, and filing tax returns.

12. Elect S Corporation Status

File Form 2553, Election by a Small Business Corporation, with the IRS to elect S Corporation status for federal tax purposes. Ensure that all shareholders sign the form and submit it by the deadline.

13. Fulfill California Tax Obligations and Fees (mandatory)

California-based S corporations and foreign corporations conducting business within California are obligated to remit taxes to the California Franchise Tax Board (FTB).

Which state taxes are requisite for a California corporation? As of the composition of this document, the annual state tax for S corporations in California is determined as the higher of 1.5% of the corporation’s net income or a fixed amount of $800. This tax obligation must be settled within the initial quarter of each accounting period, irrespective of the corporation’s activity status, profitability, or absence of business operations in California. It is advisable to consult with a certified tax professional to ascertain potential supplementary payments.

Exemption from annual minimum tax during the inaugural year: Certain newly formed corporations meeting specific criteria may qualify for an alternative tax calculation based on the corporation’s income during its initial year, thereby exempting them from the standard annual minimum tax.

Meeting California’s payroll tax obligations: Corporations become subject to California’s payroll tax if they disburse over $100 in wages (even if solely to the president and devoid of additional employees) within any quarter of a calendar year. This entails compliance with numerous additional regulations, laws, and requirements.

Ongoing Compliance Requirements

Ongoing Compliance Requirements

Paying Income Tax

As an S Corporation, you must pay income tax on the corporation’s net income. However, the income passes through to shareholders, who report it on their individual tax returns.

Meeting State Tax Obligations

In addition to federal taxes, your S Corporation may be subject to California state income taxes and other state-specific requirements. Stay informed about your tax liability and file necessary returns on time.

Minimum Franchise Tax

California imposes a minimum franchise tax on corporations, including S Corporations, regardless of their income. Be sure to fulfill this annual tax obligation to maintain good standing with the state.

Filing Annual Reports

File annual reports with the California Secretary of State to keep your corporate information current. Failure to file these reports may result in penalties or loss of good standing.

Record Keeping

Maintain accurate financial records, meeting minutes, and corporate documents to comply with state and federal regulations. Good record-keeping is essential for tax compliance and legal protection.

Seeking Professional Assistance

Seeking Professional Assistance

While setting up an S Corporation in California can be relatively straightforward, it’s essential to consult with a qualified tax professional  like Vyde to ensure compliance with all legal and tax requirements. They can provide personalized guidance based on your specific circumstances and help you navigate complex regulations.

In conclusion, forming an S Corporation in California offers numerous benefits, including pass-through taxation, limited liability protection, and potential tax savings. By following the steps outlined above and staying compliant with ongoing requirements, you can establish a solid legal and financial foundation for your small business.

For more detailed information and personalized advice, consider consulting resources like Vyde

Remember, proper planning and adherence to legal and tax obligations are crucial for the long-term success of your S Corporation in California.

FAQs for Setting Up an S Corporation in California

1. What is the significance of electing S Corporation status in California?

Electing S Corporation status in California provides small business owners with tax benefits and limited liability protection. It allows profits and losses to pass through to shareholders’ personal tax returns, avoiding double taxation typically associated with C Corporations.

2. How many directors are required for an S Corporation in California?

The number of directors required for an S Corporation in California varies based on the number of shareholders. If your S Corp has more than three shareholders, you must appoint at least three directors. However, if there are fewer than three shareholders, you need one director per shareholder.

3. Can a single-person business serve as the entire board of directors for an S Corporation?

Yes, a single-person business can technically fulfill the role of the entire board of directors for an S Corporation in California. However, it’s advisable to consider enlisting individuals with business or industry expertise, such as current or former employees, business mentors, or trusted acquaintances, to serve on the board.

4. What are the key compliance requirements for maintaining S Corporation status in California?

To maintain S Corporation status in California, business owners must adhere to various compliance requirements, including paying income tax on the corporation’s net income, meeting state tax obligations, such as filing state income tax returns, and fulfilling the annual minimum franchise tax obligation imposed by the state.

5. Why is record-keeping essential for S Corporations in California?

Proper record-keeping is crucial for S Corporations in California to ensure compliance with state and federal regulations. Accurate financial records, meeting minutes, and corporate documents help demonstrate tax compliance, uphold legal protection, and maintain good standing with regulatory authorities.


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