An S corporation (or S corp) is a business entity that elects to pass credits, deductions, corporate income and losses to its shareholders for inclusion on their personal tax returns.
To be an S corp, a company in New Jersey must meet the state's requirements, which include having fewer than 100 shareholders and having only one class of stock. The Garden State requires a business to incorporate as a standard corporation before becoming an S corp.
What Is a New Jersey S Corporation?
S corporations are named for Subchapter S of the IRS’ Internal Revenue Code. They pass on corporate credits, deductions, income and losses to their shareholders without incurring federal tax – this is known as a “pass-through” entity.
In turn, the shareholders report these elements on their personal tax returns, and the IRS assesses tax at the shareholders' individual income tax rates, allowing S corporations to steer clear of double taxation on corporate income.
Shareholders own S Corporations, which are managed by a board of directors, and run by officers that the board appoints. The company must document meetings of the shareholders or board of directors by keeping minutes.
Protection From Liability
An S corp provides limited liability protection – an owner's personal assets are protected from creditors or legal claims against the company. It also protects the personal assets of the shareholders in the event that a business goes bankrupt or loses a lawsuit. To qualify in New Jersey, an S corporation must:
- Have only permitted shareholders per IRS requirements
these can be estates, individuals or specific trusts, but not corporations, partnerships or nonresident aliens. Have up to 100 shareholders. Be a domestic corporation. Have just one stock class. Not be an ineligible corporation, such as some financial institutions, insurance companies and domestic international sales corporations. * Have a tax year ending on December 31.
Looking for a Business Name
Any company or individual doing business in the state of New Jersey must be registered in the state, but before doing this, they should:
- Choose a business structure that fits their ownership and business plan.
- Check with the state to determine the business’ licensing requirements.
- Contact the New Jersey Small Business Development Centers and seek legal advice if needed.
To do this, the entity must first search for an available business name. LLCs, C corps, S corps, LPs, and LLPs need to check to see if a name is available with the New Jersey Department of Treasury. If it is, the business will reserve the name when submitting its documents for registration, which includes a Certificate of Formation.
Finding a Registered Agent
An S corp needs a registered agent who is responsible for accepting legal documents and official mail for the business at a New Jersey street address. This entity cannot use a P.O. box.
To be a registered agent, certain requirements must be met. The registered agent:
- Must be an individual residing in the state or a business providing registered agent services.
- A person or entity that can accept legal documents during normal business hours only.
- Must be at least 18 years old.
Requirements for Corporate Directors in New Jersey
The Garden State has specific requirements for corporate directors. New Jersey requires corporations to have at least one director. However, it does not have a resident requirement for that person or persons.
Corporate directors must be at least 18 years old. Their names and addresses must be listed on the S corp’s Certificate of Incorporation. Additionally, the Certificate of Incorporation should include the name and address of the registered agent and the number of authorized shares and share value.
Registering a Business in New Jersey
After obtaining the EIN, the business must file its Certificate of Formation with the state. For-profit entities and foreign nonprofit corporations will pay a fee of $125. Domestic nonprofit corporations pay a fee of $75. This can be done online.
Getting S Corp Status From the IRS
Businesses seeking S corporation status in New Jersey must receive approval. Without it, the state considers the business to be a C corporation with all the rules that apply to that designation. To apply for S corp status in New Jersey, the business must submit a Form 2553, Election by a Small Business Corporation. All shareholders must sign the form and consent to the election.
The business must be fully registered in New Jersey, and it must file its S Corporation Election via the state's SCORP application. The S corporation election filing must have taken place within three and a half months from the start of the fiscal year to be in effect for the current tax year. Out-of-state businesses must be authorized to do business in the state to file for election.
Once an election is complete, the corporation may continue as an S corporation in New Jersey as long as it is a federal S corporation.
Revoking an Election to S Corp Status
When revoking an S corp election, a Letter of Revocation must be drafted and filed with the state Division of Revenue and Enterprise Services via the SCORP application and signed by shareholders with more than 50 percent of outstanding stock shares on the date of revocation.
The revocation filing must include a copy of the initial election form. The letter of revocation's filing must be on or before the final day of the election’s first tax year.
- Up Counsel: New Jersey S Corp Election: Everything You Need to Know
- FindLaw: New Jersey Statutes Title 14A. Corporations, General 14A Section 6-1
- New Jersey.gov: Getting Registered
- New Jersey Department of the Treasury: New Jersey's Online Business Formation
- New Jersey.gov: Business Registration - Form NJ-REG
- New Jersey Department of the Treasury: Start Registration
- IRS.gov: About Form 2553, Election by a Small Business Corporation
- Jersey Division of Revenue and Enterprise Services: S Corporation
- New Jersey: Dept. Logo Division of Revenue and Enterprise Services
- IRS.gov: Apply for an Employer Identification Number (EIN) Online
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.