Incorporate, S-Corporations

How to form an S-corp in New York State

Posted on by Bruce

How to form an S-corp:

All businesses start out formed as a C-corporation which is taxed under sub chapter C of the International Revenue Code (IRC). They are faced with double taxation; Corporate tax as well as tax on dividends paid to the stock shareholders. In order to avoid double taxation, most corporations will elect to file an S corporation.

S-corporations differ from C-corporations because they do not have corporate tax. Each stockholder instead lists the annual profit on their individual tax return. This method of taxation is called “pass-through” taxation. The owners pay any tax that is due after filing a federal return (Form 1120s).

To have your business taxed as an S-corp instead of a C-corp your business must meet the following requirements:

  1. Have only 1 class of stock
  2. Have no more than 100 shareholders
  3. Shareholders must be US citizens or residents (Corporations or partnerships cannot be shareholders)
  4. Be a domestic corporation
  5. All the shareholders must consent

If your business meets the requirements and you would like to become an S-corp you must file on or before the fifteenth day of the third month of the tax year to which the election will apply. Using form CT-6 a federal S corporation can elect to be taxed as a New York S corporation. The form is available at the link below and can be faxed to: (518) 435-8605

https://www.tax.ny.gov/pdf/current_forms/ct/ct6_fill_in.pdf

In addition to CT-6, you must also file IRS form 2553. The form is available at the link below and can be faxed to (855)270-4081

https://www.irs.gov/pub/irs-pdf/f2553.pdf

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Standard General Purpose

This Corporation is formed to engage in any lawful act or activity for which a corporation may be organized under the Business Corporation Law, provided That it is not formed to engage in any act or activity requiring the consent or approval of any state official, department, board, agency or other body without such consent or approval first being obtained.

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Who Is The Incorporator?

The incorporator is the person who creates the corporate existence by signing the articles of incorporation. The incorporator may be one of the shareholders, directors, or officers of the corporation, or any other person. Being listed as the incorporator is in no way demonstrating ownership in the corporation. The incorporator cannot be amended (changed) at a later date.

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Effective Date of Incorporation

A corporation generally comes into existence and becomes officially “incorporated” when the Articles of Incorporation are filed with New York State. Becoming incorporated on the date of filing is usually the best option. However, if there is a reason that you require your corporation to have a later effective date, New York State allows up to a 90 day window. This future effective date is listed in the articles of incorporation when filed. If desired, indicate the date after filing that you want your corporation to begin.

One common example of a delayed filing date may occur in December. A person may want to have the corporation filed and ready to go for January. By not setting a start date for January 1st or later this may trigger Federal and State tax returns to be filed for the prior year even though no actual business has commenced. If unsure please speak with your Accounting professional.

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200 Shares N.P.V. (Standard)

Every business corporation must designate in its certificate of incorporation the number of shares that the corporation has authority to issue and must state the “par value” of the shares or whether they are without “par value.” Shares without par value may be issued or sold at any price. Shares with a stated par value cannot be issued or sold at a price less than the stated par value. Most corporations are formed with 200 shares no par value (N.P.V.).

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Non-Profit Purpose of Corporation

The Certificate of Incorporation must set forth the purpose or purposes for which the corporation is formed. It is sufficient to state that the purpose of the corporation is any purpose for which corporations may be organized under the NPCL, either as a Charitable Corporation or as a Non- charitable Corporation. Alternatively, the Certificate of Incorporation may set forth specific purposes. The Certificate of Incorporation form includes three choices regarding the corporation’s purpose. Check the appropriate box.

If the Certificate of Incorporation sets forth specific purposes, such statement of purposes must include sufficient information for a reader of the document to understand why the corporation has been formed. The Certificate of Incorporation may also set forth any activities that the corporation intends to carry out in furtherance of its purpose or purposes. However, a corporation is not required to set forth such activities or otherwise state how the corporate purposes will be achieved.

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Non-Profit Required Consents

Corporations formed for certain purposes require the consent or approval of another governmental agency or office. (See NPCL § 404) When one is required, the written consent or approval must be attached to the Certificate of Incorporation when it is submitted to the Department of State for filing. Complete Paragraph Fourth by checking the appropriate statement to indicate whether any consents or approvals are required.

The following is a partial list of governmental agencies and offices that must consent to or approve the filing of certain Certificates of Incorporation prior to filing with the Department of State. Questions regarding consents or approvals should be directed to the agency or office at the listed address or telephone number. 

 

Agency or Office Applicable Section of the NPCL and Purpose Requiring Consent or Approval
Office of the Attorney General
Antitrust Bureau
120 Broadway, 26th Floor New York, NY 10271
(212) 416-8436 		Section 404(a) – formation of a trade or business association.
Office of Children & Family Services
52 Washington Street Rensselaer, NY 12144
(518) 473-7793 		Section 404(b) – institutions for children; care of destitute, delinquent, abandoned, neglected or dependent children; adoption services; establishment or operation of a home or shelter for unmarried mothers; residential programs for victims of domestic violence or the solicitation of contributions for any such purposes.
Department of Health
Division of Legal Affairs
Corning Tower, Room 2482 Empire State Plaza
Albany, NY 12237
(518) 473-3233 		Section 404(b) – establishment or operation of any aged care accommodation; adult care facility; enriched housing programs; residences for adults or the solicitation of contributions for any such purpose.
Department of Education
Office of Counsel State Education Bldg. Room 148
Albany, NY 12234
(518) 473-8296

Section 404(d) – operation of a school, college, university or other entity providing post secondary education, library, museum or historical society.
Note: The Department of Education requires a $10 fee to obtain consent.
Public Health and Health Planning
Council Department of Health Division of Legal Affairs Corning Tower, Room 2482
Empire State Plaza
Albany, NY 12237
(518) 473-3233 		Sections 404(o) and (t) – establishment or maintenance of a hospital or facility providing health related services or the solicitation of contributions for any such purpose.
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Charitable Nature of the Corporation

Indicate whether the corporation is a Charitable Corporation or a Non-Charitable Corporation. The charitable or non-charitable categorization is based on the corporation’s purposes.

A Charitable Corporation is any corporation formed for Charitable Purposes. Charitable Purposes of a corporation means one or more of the following purposes: charitable, educational, religious, scientific, literary, cultural or for the prevention of cruelty to children or animals.

A Non-Charitable Corporation means any corporation formed under the Not-for-Profit Corporation Law, other than a Charitable Corporation, including but not limited to one formed for any one or more of the following non-pecuniary purposes: civic, patriotic, political, social, fraternal, athletic, agricultural, horticultural, or animal husbandry, or for the purpose of operating a professional, commercial, industrial, trade or service association.

A corporation formed for both charitable and non-charitable purposes is a Charitable Corporation.

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IRS Language

To qualify for tax exempt status under the Internal Revenue Code, the corporation must be organized for one or more of the purposes specifically designated in the Internal Revenue Code. The Internal Revenue Service will require that certain provisions be included in the corporation’s Certificate of Incorporation prior to granting tax exemption. These provisions are included in the Internal Revenue Service’s Publication 557 – Tax Exempt Status for your Organization.

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501 (c) 3 Language

Said organization is organized exclusively for charitable, religious, educational and scientific purposes, including, for such purposes, the making of distributions to organizations that qualify as exempt organizations under Section 501(c)(3) of the Internal Revenue Code, or corresponding section of any future federal tax code.

No part of the net earnings of the organization shall inure to the benefit of, or be distributable to its members, trustees, officers, or other private persons, except that the organization shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in the purpose clause hereof. No substantial part of the activities of the organization shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the organization shall not participate in, or intervene in (including the publishing or distributions of statements) any political campaign on behalf of any candidate for public office. Notwithstanding any other provision of this document, the organization shall not carry on any other activities not permitted
to be carried on (a) by an organization exempt from Federal income tax under section 501 (c) (3) of the Internal Revenue Code, or corresponding section of any future tax code, or (b) by an organization, contributions to which are deductible under section 170 (c) (2) of the Internal Revenue Code, or corresponding section of any future federal tax code. Upon the dissolution of the organization, assets shall be distributed for one or more exempt purposes within the meaning of section 501 (c) (3) of the Internal Revenue Code, or corresponding section of any
future Federal tax code, or shall be distributed to the federal government, or to a state or local government, for a public purpose. Any such assets not disposed of shall be disposed of by the Court of Common Pleas of the county in which the principal office of the organization is then located, exclusively for such purposes or to such organization of organizations, as said Court shall determine, which are organized and operated exclusively for such purposes.

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The LLC is Managed by

In the formation of a new “LLC” you must choose the management type that will best fit your situation in operating the company. There are two distinct types to choose from. “Member Managed” which is where all the members (owners) participate in running the LLC or “Manager Managed” where only specified members, nonmembers or outsiders are tasked with running the business operations. The default is set to Member Managed as this is by far more common for small LLC’s.

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Requirement

Publication of Legal Notice are required for all New York LLC’s Under Section 206 of the Limited Liability Company Law, publishing is required within 120 days from forming the LLC or the LLC will have their authority to carry on, conduct or transact any business suspended.

Pricing

Our competitive prices for New York LLC publishing include the newspaper advertising and Department of State filing fees along with our modest service fee. We will ensure that all requirements are met from beginning to end. There are no hidden charges, annual contracts, or documents to sign. All quoted prices are based on the advertising costs in each stated county.

New York Publication Process:

Timeline to Complete Publishing:

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