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Question

My husband and I recently started a business a few months ago. He is otherwise unemployed but I am working full-time. We incorporated as an LLC in a non-community property state so does this mean we don't qualify for the 110-28 rule?

Submitted: 48 days and 1 hours ago.
Category: Tax
Value: $15
Status: CLOSED
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State/Country relating to question: Florida

Posted by Anne 47 days and 21 hours ago.

Answer

Hi XXXXXXXXX

Thank you for using justanswer. You are correct. Since the 110-28 rule in effect makes a business that is jointly owned by a husband and wife a partnership (even though they do not have to file a partnership return.) it is only available for unincorporated businesses . Please see below:

Election for Husband and Wife Unincorporated Businesses


Here's the web address that you may copy and paste into your browser in case the link doesn't work:

http://www.irs.gov/businesses/small/article/0,,id=177376,00.html

I hope this helps

47 days and 21 hours ago.

Reply

so would it be more beneficial to change the structure of the organization so that it is an LLC sole proprietorship or keep the structure as is and file as a partnership? i'm just wondering if there would be much of a tax difference.

Accepted Answer

My guess is that the LLC is set up as an S Corp. Under the S Corp provisions as prescribed by the IRS you are required to pay yourself (or just your husband if he is the only one working for your business at the moment) a "reasonable wage". Although IRS does not give clear guidelines as to what is considered a "reasonable wage", one of the accepted practices is to keep track of the number of hours worked and pay yourself at the going rate for that particular type of job.

Since you must pay yourselves wages, this means that you must also pay all applicable payroll taxes, and you will receive a W2 at the end of the year.

If you want to revert this back to a Sole Proprietor status, you will be relieved of having to pay yourselves a salary, thus eliminating payroll taxes. Under the sole proprietorship rules, if you both work in the business, then as explained above, you would be eligible for the 110-28 rule, and you may each file as a sole proprietor claiming your share of the income, and you will each need to file Form SE to pay your share of the social security tax.

There are some other considerations that should be looked at here though, specifically liability issues. Under a sole proprietorship, there is no liability protection as there is under an S Corp.

I'm linking you to a web site that gives you a pretty good comparison of the different types of entities available, and some of the pros and cons to each type.

I strongly suggest that you speak with an Enrolled Agent, CPA, or professional tax preparer re: which entity would best suit your needs, especially if you decide to change from an S Corp to a Sole Proprietor as there are forms and steps you must take to close the S Corp if you decide to change.

C Corporation vs S Corporation vs LLC

Since the links don't always work, I'm also providing the web address so that you can copy and paste it in your web browser.

http://www.themoneyalert.com/Corp-Entity-Table.html

I hope this helps. I will be away from my computer for the next few days, although I will try to check back late at night when I get home.

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Expert: Anne
Pos. Feedback: 100.0 %
Accepts: 
Answered: 10/6/2009

Master Tax Preparer

Enrolled Agent with 20 Years Experience specializing Individual and Small Businesses

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