Canadians considering setting up a US based company will undoubtedly come across the terms C-corp and S-corp when researching options for setting up their US entity. On the surface the S-corp sounds like the best choice because of the tax efficiency that it can provide. But the choice is not as simple as that. Corporations in the US are considered either C- corporations (c-corp) or S- corporations (s-corp) and these designations are based on the corporation’s tax treatment by the U.S. Internal Revenue Code. The letters “c” and “s” refer to the subchapters in the US Internal Revenue Code regarding the taxation of corporations. In order to be treated as an s-corp, a corporation must make an election with the IRS by filing an IRS Form 2553 within a specified time period from the date of incorporation or the company's fiscal year end. Otherwise, without a timely filed election, a corporation is by default a c-corp.
An S-corp election will cause a corporation to be treated for tax purposes as a flow-through entity ( like a partnership or LLC). This means that profits earned in the corporation will not be taxed at the corporate level, but instead will be deemed to flow through to the shareholders and be taxable as personal income, even if a shareholder has not actually received those monies from the corporation.
In order for a corporation to qualify as an S-corporation the corporation must have only one class of shares, and all of the shareholders must be US persons (generally this means they are US citizens or lawful residents of the United States).
For this reason, in some circumstances where there is a need for more than one class of ownership, and/or the shareholders will include non-US persons, a S-corporation is not the right option. If flow through tax treatment is the priority, then a Limited Liability Company ( LLC) or a Limited Liability Partnership ( LLP) or a Limited Partnership (LP) may be a better choice for a business requiring liability protection with flow through tax treatment.
However, when it comes to Canadian residents, direct ownership in an LLC or LLP is generally avoided for tax efficiency reasons under the US Canada Tax Treaty as will be discussed in greater detail in a future post.
A corporation with Canadian shareholders that do not hold US residency status or US citizenship would not qualify for an S-corporation election, therefore a Canadian owned US corporation would by default be a C-corporation.
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** Disclaimer: This article contains only general legal information and is not intended to replace legal advice specific to the reader’s situation. We strongly encourage you to seek legal advice from your lawyer before acting based on any information given here.