Another item that could cause an entity taxed as an S corporation to lose the election is disparate distributions. Like most things, this is simple in theory but more complicated in application. The theory is that the shareholders of an S corporation are entitled only to the proportion of corporation distributions based on their percentage ownership of the stock. In other words, if you are a shareholder of an S corporation, you are entitled to the same proportion of distributions as you own shares (if you own 1/3 of the shares, you are entitled to 1/3 of the distributions).
Remember that one of the eligibility requirements to be taxed as an S corporation is that the corporation only have one class of stock (not that this means that all of the shares of an S corporation must have the same rights to distributions and upon liquidations [i.e. economic rights], even though they can have different voting and other rights).
Sometimes an S corporation will mistakenly pay distributions that are not proportionate, sometimes it will do it intentionally for various reasons and catch up in later years. The important point is that making disparate distributions will not automatically terminate an S election. The IRS said in final regulations adopted in 1992 that disproportionate distributions will not automatically indicate a second class of stock (which would automatically terminate the S corporation status) as long as the disproportionate distributions are not required by a binding agreement (Treasury Decision 8419, 1992-2). Treasury Reg. section 1.1361-1(l) states “a corporation is treated as having only one class of stock if all outstanding shares of stock of the corporation confer identical rights to distribution and liquidation proceeds”.
Subsection (i) of that same section, with respect to making a determination about whether such shares have identical economic rights, states as follows:
The determination of whether all outstanding shares of stock confer identical rights to distribution and liquidation proceeds is made based on the corporate charter, articles of incorporation, bylaws, applicable state law, and binding agreements relating to distribution and liquidation proceeds (collectively, the governing provisions). A commercial contractual agreement, such as a lease, employment agreement, or loan agreement, is not a binding agreement relating to distribution and liquidation proceeds and thus is not a governing provision unless a principal purpose of the agreement is to circumvent the one class of stock requirement of section 1361(b)(1)(D) and this paragraph (l). Although a corporation is not treated as having more than one class of stock so long as the governing provisions provide for identical distribution and liquidation rights, any distributions (including actual, constructive, or deemed distributions) that differ in timing or amount are to be given appropriate tax effect in accordance with the facts and circumstances.
Below are examples of situations that cover the above issues from 26 CFR 1.1361-1(l)(2):
Example 1. Determination of whether stock confers identical rights to distribution and liquidation proceeds.
(i) The law of State A requires that permission be obtained from the State Commissioner of Corporations before stock may be issued by a corporation. The Commissioner grants permission to S, a corporation, to issue its stock subject to the restriction that any person who is issued stock in exchange for property, and not cash, must waive all rights to receive distributions until the shareholders who contributed cash for stock have received distributions in the amount of their cash contributions.
(ii) The condition imposed by the Commissioner pursuant to state law alters the rights to distribution and liquidation proceeds conferred by the outstanding stock of S so that those rights are not identical. Accordingly, under paragraph (l)(2)(i) of this section, S is treated as having more than one class of stock and does not qualify as a small business corporation.Example 2. Distributions that differ in timing.
(i) S, a corporation, has two equal shareholders, A and B. Under S’s bylaws, A and B are entitled to equal distributions. S distributes $50,000 to A in the current year, but does not distribute $50,000 to B until one year later. The circumstances indicate that the difference in timing did not occur by reason of a binding agreement relating to distribution or liquidation proceeds.
(ii) Under paragraph (l)(2)(i) of this section, the difference in timing of the distributions to A and B does not cause S to be treated as having more than one class of stock. However, section 7872 or other recharacterization principles may apply to determine the appropriate tax consequences.
Example 3. Treatment of excessive compensation.
(i) S, a corporation, has two equal shareholders, C and D, who are each employed by S and have binding employment agreements with S. The compensation paid by S to C under C’s employment agreement is reasonable. The compensation paid by S to D under D’s employment agreement, however, is found to be excessive. The facts and circumstances do not reflect that a principal purpose to D’s employment agreement is to circumvent the one class of stock requirement of section 1361(b)(1)(D) and this paragraph (l).
(ii) Under paragraph (l)(2)(i) of this section, the employment agreements are not governing provisions. Accordingly, S is not treated as having more than one class of stock by reason of the employment agreements, even though S is not allowed a deduction for the excessive compensation paid to D.
Example 4. Agreement to pay fringe benefits.
(i) S, a corporation, is required under binding agreements to pay accident and health insurance premiums on behalf of certain of its employees who are also shareholders. Different premium amounts are paid by S for each employee-shareholder. The facts and circumstances do not reflect that a principal purpose of the agreements is to circumvent the one class of stock requirement of section 1361(b)(1)(D) and this paragraph (l).
(ii) Under paragraph (l)(2)(i) of this section, the agreements are not governing provisions. Accordingly, S is not treated as having more than one class of stock by reason of the agreements. In addition, S is not treated as having more than one class of stock by reason of the payment of fringe benefits.
Example 5. Below-market corporation-shareholder loan.
(i) E is a shareholder of S, a corporation. S makes a below-market loan to E that is a corporation-shareholder loan to which section 7872 applies. Under section 7872, E is deemed to receive a distribution with respect to S stock by reason of the loan. The facts and circumstances do not reflect that a principal purpose of the loan is to circumvent the one class of stock requirement of section 1361(b)(1)(D) and this paragraph (l).
(ii) Under paragraph (l)(2)(i) of this section, the loan agreement is not a governing provision. Accordingly, S is not treated as having more than one class of stock by reason of the below-market loan to E.
Example 6. Agreement to adjust distributions for state tax burdens.
(i) S, a corporation, executes a binding agreement with its shareholders to modify its normal distribution policy by making upward adjustments of its distributions to those shareholders who bear heavier state tax burdens. The adjustments are based on a formula that will give the shareholders equal after-tax distributions.
(ii) The binding agreement relates to distribution or liquidation proceeds. The agreement is thus a governing provision that alters the rights conferred by the outstanding stock of S to distribution proceeds so that those rights are not identical. Therefore, under paragraph (l)(2)(i) of this section, S is treated as having more than one class of stock.
Example 7. State law requirements for payment and withholding of income tax.
(i) The law of State X requires corporations to pay state income taxes on behalf of nonresident shareholders. The law of State X does not require corporations to pay state income taxes on behalf of resident shareholders. S is incorporated in State X. S’s resident shareholders have the right (for example, under the law of State X or pursuant to S’s bylaws or a binding agreement) to distributions that take into account the payments S makes on behalf of its nonresident shareholders.
(ii) The payment by S of state income taxes on behalf of its nonresident shareholders are generally treated as constructive distributions to those shareholders. Because S’s resident shareholders have the right to equal distributions, taking into account the constructive distributions to the nonresident shareholders, S’s shares confer identical rights to distribution proceeds. Accordingly, under paragraph (l)(2)(ii) of this section, the state law requiring S to pay state income taxes on behalf of its nonresident shareholders is disregarded in determining whether S has more than one class of stock.
(iii) The same result would follow if the payments of state income taxes on behalf of nonresident shareholders are instead treated as advances to those shareholders and the governing provisions require the advances to be repaid or offset by reductions in distributions to those shareholders.
Example 8. Redemption agreements.
(i) F, G, and H are shareholders of S, a corporation. F is also an employee of S. By agreement, S is to redeem F’s shares on the termination of F’s employment.
(ii) On these facts, under paragraph (l)(2)(iii)(B) of this section, the agreement is disregarded in determining whether all outstanding shares of S’s stock confer identical rights to distribution and liquidation proceeds.
Example 9. Analysis of redemption agreements.
(i) J, K, and L are shareholders of S, a corporation. L is also an employee of S. L’s shares were not issued to L in connection with the performance of services. By agreement, S is to redeem L’s shares for an amount significantly below their fair market value on the termination of L’s employment or if S’s sales fall below certain levels.
(ii) Under paragraph (l)(2)(iii)(B) of this section, the portion of the agreement providing for redemption of L’s stock on termination of employment is disregarded. Under paragraph (l)(2)(iii)(A), the portion of the agreement providing for redemption of L’s stock if S’s sales fall below certain levels is disregarded unless a principal purpose of that portion of the agreement is to circumvent the one class of stock requirement of section 1361(b)(1)(D) and this paragraph (l).