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My employer and I are looking into the benefits of me forming

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an LLC; they would compensate...
My employer and I are looking into the benefits of me forming an LLC; they would compensate the LLC and I would draw my salary from the LLC. What tax considerations are there, i.e. payroll taxes, workers comp & disability, etc.? HR Benefits considerations (e.g. health and life insurance plans, retirement plans, etc.) would be appreciated.
Submitted: 8 years ago.Category: Tax
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Answered in 10 hours by:
5/4/2009
Tax Professional: Ed Johnson, Tax Preparer replied 8 years ago
Ed Johnson
Ed Johnson, Tax Preparer
Category: Tax
Satisfied Customers: 10,760
Experience: GPHR Cert; U.S. Treasury Tax Advocacy Panel appointee
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Dear cmentixer,

 

The main tax considerations are;

 

1. Classification of employment. Your employer has to properly classify you. One might think this is not an issue if you are an LLC and are instead a 1099 employee. However the IRS considers sole owner LLC's to be disregarded and you are taxes as a sole proprietorship. Read this site for more information about this issue: http://www.irs.gov/businesses/small/article/0,,id=99921,00.html

 

2. Employment Taxes:

 

a. Employer: for an employer it is a bargain. He does not have to pay employment taxes which are the employer's SS and MC contribution, state disability and unemployment tax. He is not required to pay you any benefits unless you make it part of the contract. He is not required to pay your worker's comp, unless it is part of the contract.

 

b. Employee: You do not get paid on a W-2, you take a draw. You therefor have to pay all your own SS and MC taxes in a form called Self-employment tax (SE Tax). This is 15.3% and is equivalent to both the employer and employee contributions to MC and SS. 50% of that tax is carried forward to the front side of the form 1040 as a business expense that reduces adjusted gross income. You pay your own worker's comp insurance; and if unemployed, will most likely NOT be eligible for unemployment benefits. You have to pay for and buy your own benefit programs, but these would be considered business expenses on schedule C. You would be eligible to enroll in your own so called Self Employed retirement funds, which can be quite lucrative.

 

http://personal.fidelity.com/products/retirement/getstart/newacc/keogh.shtml.cvsr

 

ISSUE: you state your employer is going to pay you as a draw from your LLC payment. This would in my opinion jeopardize your protections as an LLC. When you form an LLC, part of the reason is to gain certain corporate protections. But when your employer take a draw from your LLC payment, then he is controlling your pay, and puts your LLC in a position of being determined an alter ego organization, (essentially a tax or payroll expense dodge), and you lose protections.

 

If you are going to be an LLC, you need to be completely autonomous, and you control your own draw.

 

Secondly if you are truly an LLC from a business perspective, then he need to pay a contract price commensurate with what you would charge in order to pay your own salary (take a draw for salary), and pay 15.3% payroll taxes, plus 5 or 6 percent additional to pay for your own health care and retirent fund plans.

 

Many employers, especially in the transportation and construction industries try the ploy you mention, to save on payroll expense, and in the mean time, the employee actually takes a reduction in wage and benefits package of beteen 15 and 30%

 

 

 

 

Ed Johnson
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