Paul Yenerall

Tuesday, 22 June 2004 12:55

Structural concerns

Businesses often overlook the fact that being a corporation, partnership, limited liability company or limited liability partnership affects the federal income taxation of employee retirement and benefit plans. Disregarding the taxability or deductibility of these benefits can create a significant extra tax liability, either for the entity or its owners.

The differences in the federal income taxation of employee benefit plans relate to whether the individual covered under the plan is considered to be self-employed. Employees who have no ownership in the entity are all treated the same. Individuals considered self-employed are, in many instances, subject to different tax rules.

An individual is self-employed if he or she is a sole proprietor, partner, or 2 percent or more shareholder of an S corporation or of an LLC taxed as an S corporation. Shareholders of a C corporation or of an LLC taxed as a C corporation are not treated as self-employed, regardless of the amount of their ownership.

Here are some ways sole proprietors, partnerships, S corporations and LLCs taxed as S corporations may incur extra federal income tax liability from employee retirement and benefit plans.

* Contributions to qualified retirement plans are not deductible to the extent that they create a net operating loss.

* Group term life insurance premiums paid for self-employed individuals are not deductible by the entity and are included in gross federal taxable income of the self-employed individual. The self-employed individual is not entitled to take a portion of this expense as a business deduction or a personal itemized deduction.

* Employer-provided disability insurance for self-employed individuals is not deductible. If disability occurs, however, the self-employed individual pays no income tax on the proceeds.

* Self-employed individuals cannot participate in cafeteria plans and qualified transportation fringe benefit plans.

The taxability and deductibility of employee benefit plans should generally not be the deciding factor in selecting a form of entity, but business owners should understand that these factors may affect both their business and their personal bottom lines in significant ways. Paul M. Yenerall is a lawyer with Eckert Seamans Cherin & Mellott. Contact him at