Subchapter S was enacted to allow the owners of closely held businesses "to select the form of business organization desired, without the necessity of taking into account major differences in tax consequences."1 An S corporation is a creation of the Internal Revenue Code and has no legal standing as such. The first requirement is that a corporation be formed under the laws of some state. Bravenec says that "Subchapter S applies only to a 'small business corporation' that files a proposed election under [IRC] Section 1372."2 Any corporation which does not qualify as an S corporation or which loses that qualification is taxed as a C corporation. Qualification as an S corporation for federal income tax purposes qualifies a corporation for similar tax treatment at the state level in all but seven states. One state, Louisiana, does not recognize S corporations (LA. Rev. Stat. Ann. Section 47: 287.732) and some others, including California, impose small income taxes on the corporate entity. In California, income of S corporat

20McNulty, 189 and Bravenec, 12-35.

Lablis, Bertrand. "Seeing Shelter, Partnership Structure Is Called in Question as Liability Risk Rises." Wall Street Journal, 10 June 1992, Al.

5Internal Revenue Service, Publication 5411, December, 1987.

16Elliott Manning, Choosing the Business Entity (C.C.H.

ions is subject to an annual 2.5 percent tax at the corporate level under Cal. Rev. and Tax Code Section 23802. Separate elections must be filed in most states. For federal income tax purposes, the Subchapter S election must be filed under IRC Section 1362 (a) on or before the 15th day of the third month of the corporation's current taxable year or, if it is newly formed, the earliest of the dates the corporation has shareholders, starts in business or acquires assets. All shareholders must consent to the election.

To qualify as a partnership for tax purposes, a partnership must under Revenue Ruling 88-73 and Regulation 301.7701-2 lack at least two of the following four characteristics: continuity of life, centralization of management, limited liability, and free transferability of partnership interests. If it fails to meet this test, the partnership will be taxed as though it were a C corporation.

31Bertrand Lablis, "Seeing Shelter, Partnership Structure Is Called in Question as Liability Risk Rises." Wall Street Journal, 10 June 1992, Al.

14John K. McNulty, Federal Income Taxation of S Corporations (Westbury, CT: Foundation Press, 1992, 172.