C corporation owners often need to take cash out of the business to pay personal expenses or to shield excess cash from creditors. Paying dividends is one way to withdraw cash from the business, but it generally has some significant downsides. Fortunately, additional options may be available. Here's what you need to know.
The biggest drawback with dividends is that they're taxable to the recipient and not deductible by the corporation. This leads to double taxation: 1) The corporation pays tax on its earnings, and 2) the shareholder pays taxes on the dividends.
The shareholder generally will pay capital gains tax, which ranges from 15% to 20%, depending on the shareholder's taxable income and filing status. Dividends also might be subject to the net investment income tax (NIIT). The 3.8% NIIT applies when modified adjust gross income exceeds the following thresholds:
In addition, the amount of dividends that can be paid is subject to certain limitations. For example, state statutes intended to prevent fraudulent distributions to owners may apply. And, if a dividend exceeds the corporation's current-year or accumulated earnings and profits, the excess is considered a return of capital. While capital returns aren't taxable, they reduce the basis in your shares, which will result in extra capital gains when the business (or business interest) is sold.
Another concern is that you could draw scrutiny if you haven't paid dividends in the past. If the corporation is struggling to pay its debts on a timely basis, the payment of dividends could suggest fraud.
Consider the following five alternative means of withdrawing cash from your corporation to potentially avoid double taxation:
1. Compensation. The IRS allows your corporation to claim a business expense deduction for reasonable compensation, so these payments are taxed only once. Excess amounts aren't deductible, though, and the IRS will treat them as dividends. However, if you underpay yourself in the early years of operating your business, when cash is tight, you might be able to pay yourself a little extra in subsequent years to make up the difference. Your tax advisor can help determine what's reasonable, including both salary and bonuses, and recommend adjustments to prior years, if applicable.
2. Fringe benefits. Examples of fringe benefits that are deductible for the corporation and tax-free for recipients, include:
With a salary reduction plan, the corporation makes pretax contributions to certain retirement plans that are immediately deductible for the business, while deferring your tax liability.
3. Loans. If cash is required more urgently, a corporation can extend a loan to a shareholder. However, the IRS may reclassify the arrangement as a dividend if it isn't deemed a "bona fide loan." Several factors are used to determine whether a loan is bona fide. Among other things, you must have a written promissory note that's signed and dated by the lender and the borrower. The note should spell out the terms, including an interest rate no lower than the applicable federal rate. The existence of a note alone isn't decisive, though, if the substance of the arrangement indicates it wasn't truly a loan.
4. Lease arrangements. Shareholders can lease personal property to a corporation in exchange for rent. The business can deduct the rent, while the shareholder receives rental income that's reported on the individual income tax return. These transactions also run the risk of IRS reclassification. For example, if the rent exceeds market rates, lease payments could be treated as dividend payments.
5. Return of capital. If you previously advanced capital to the corporation, the business could make nontaxable repayments. A repayment of capital won't be treated as a dividend, and the corporation can deduct any interest paid, assuming you've properly structured the capitalization as debt. But, if repayments exceed your stock basis, the excess will represent a taxable capital gain.
Important: In general, shareholders should be cautious about contributing additional capital to the business. In most cases, you'd be better off obtaining financing in the corporation's name.
Whichever route you select to withdraw cash from your corporation, it's important to document the details and adhere to the relevant corporate formalities. For instance, you should include the decision in shareholder meeting minutes, as well as adopt formal written and consistent plans or policies. Your tax advisor can help you make the best choice for your circumstances and satisfy the applicable substantiation requirements.
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