President Trump’s tax plan--otherwise known as the Tax Cuts and Jobs Act--was signed into law on Dec. 22, 2017, emphasizing cutting the corporate tax rate and simplifying the individual income tax system. Whether a hugely profitable multinational corporation or a tiny sole proprietorship, every business that counts as a C corporation is now taxed at a flat rate of 21%, down from the original 35%.

One commonly-voiced concern is that this new system creates a tax loophole encouraging individuals to register as pass-through entities such as limited liability companies (LLCs) and S Corporations so that their business income can be taxed based on their individual tax rate. This means that the LLC tax rate varies.

What Is a Pass-Through Entity?

An LLC is considered a pass-through entity—also called a flow-through entity—meaning it pays taxes through individual income tax code, rather than through corporate tax code. In addition to LLCs, sole proprietorships, S Corporations, and partnerships are all pass-through businesses, in contrast to C Corporations, which are not.

How the LLC Tax Rate Is Calculated

C Corporations tax the profits of owners twice: once at the corporate level and again at the personal level. Not surprisingly, smaller companies not requiring the unique ownership structure of a C Corp—or the ability to sell shares to the public— most often organize as LLCs or S Corporations

Meanwhile, because owners of LLC are able to deduct up to 20% of their business income before their tax rate is calculated, it can be highly beneficial to file as an LLC based on an individual's own personal income tax rate. Ultimately, this could range from 10% to 37% based on each individual's unique filing status and income level.

Small operations that have no plan of raising money from public shareholders but want a higher level of legal and financial protection for their personal assets often form LLCs. All 50 states allow LLCs to consist of just one person. Almost any line of business may be incorporated as an LLC except banking, trust, and insurance businesses. Some states impose additional restrictions, such as California’s prohibition against architects, licensed healthcare workers, and accountants registering as LLCs.

How to File as an LLC

Forming an LLC is relatively simple. While it varies by state, the process typically entails filing articles of organization with the state, completing a fill-in-the-blank form, and paying a filing fee. For better financial and legal protection, owners should create an LLC operating agreement even in states which don’t require one. 

Anyone can form an LLC, but that doesn’t mean anyone can generate income as an LLC. According to CPA Aaron Lesher of Hurdlr, a small business finance app, “a regular salaried employee could theoretically quit their job, create an LLC, and sell their freelance services back to their company to avoid paying a higher income tax rate." However, Lesher notes, “The employee-as-an-LLC idea is a massive audit red flag.”

It isn’t simply up to employers or employees to decide how workers are classified. Their classification depends on how they measure up to various guidelines in the tax code.

“The IRS is very clear on the difference between a contractor and an employee,” says Josh Zimmelman, president of Westwood Tax & Consulting LLC, a New York City-based accounting firm. “There are three main factors they look at: financial control, behavioral control, and relationship type.”

  • Financial control: The IRS looks at whether the worker is paid a regular wage, an hourly rate, or a flat fee per project. “An employee is generally guaranteed a regular wage amount for an hourly, weekly, or another period of time,” the IRS states on its website. “This usually indicates that a worker is an employee, even when the wage or salary is supplemented by a commission. An independent contractor is generally paid a flat fee for the job. However, it is common in some professions, such as law, to pay independent contractors hourly.”
  • Behavioral control: The IRS looks at whether a worker has control over when, where, and how he or she performs the work. “For example, an employee has regular hours and is told where to work; a contractor is offered more freedom as long as the work gets done,” Zimmelman says.
  • Relationship type: The IRS reviews any written agreements between worker and employer, including the permanency of the relationship. “For example, if a worker receives benefits [such as] health insurance, sick pay, vacation pay, etc., then they are likely an employee,” Zimmelman says. “Misclassifying an employee as a contractor may result in penalties, especially if that worker is paid in the same manner as regular employees are paid.”

The first step in any plan to turn salaried personal income into LLC income is that the employer must agree to pay the employee as an independent contractor. Certain employers may be game as such an agreement would no longer obligate them to provide health benefits to that worker. However, it's unlikely most employers would participate in such a plan.

“Most employers know that hiring a self-employed person who is considered a disregarded entity--in this case, the LLC--will cause huge problems with the State Department of Labor and no one wants that,” says Abby Eisenkraft, author of 101 Ways to Stay Off the IRS Radar and CEO of Choice Tax Solutions Inc. in New York City. 

"If a company tries to represent that a person whose work hours they are controlling – and whose desk space and equipment they are providing – is a contractor, they are inviting the IRS, the state, and the Department of Labor to audit them. And they won’t win," she concludes.

Assuming the worker and employer could work out a true independent contractor relationship which would survive an audit, the worker must weigh whether their new pay rate as a contractor combined with the loss of benefits -- which might run the gamut from health, dental, life and disability insurance to 401(k) contributions and paid time off -- would be worth the tax savings.

So Do LLCs Save Under the New LLC Tax Reform Plan?

Now we arrive at an even trickier crossroad: the current taxation of LLC income versus the proposed taxation of LLC and other business income.

Unlike C corporations, LLCs are not considered separate entities so they do not pay taxes themselves. By default, single-owner LLCs are taxed as sole proprietorships, but LLCs can choose to be taxed as S Corps or C Corps, which may benefit some businesses by reducing their employment taxes (Medicare and Social Security taxes). 

Let’s assume that an LLC wants to be taxed as an S Corp to save money on payroll taxes while avoiding the double taxation of a C Corp. Under Trump’s plan, the change in business tax rates and the large discrepancy between the flat business tax rate of 21% and the income tax rates between 10-37% might appear to create tax relief by savvy individuals. 

Tax experts, however, say it’s not that simple.

Independent contractors running small corporations will not easily be able to abuse the system because the terms of this bill require that these people be employees of their own corporations and pay taxes via payroll. Eisenkraft explains, “In this case, the sole officer will receive a W-2 and be paying taxes at his or her ordinary tax rate based on wages and other income items on the tax return."

Those wages, in other words, would be taxed at the personal rate under the Trump proposal of 10%, 25% or 35%, and subject to Social Security and Medicare taxes (FICA).

“The flow-through portion may be taxed at a reduced rate, but the IRS will not allow that employee to take less than a reasonable salary,” Eisenkraft says. “There are many court cases out there where an officer making hundreds of thousands of dollars tries to take a $25,000 salary, and they lose in tax court.”

Taxation of Owner’s Salary vs. Pass-Through Profits

The tax rate an independent contractor pays on income is the same under the proposed Trump tax plan as under previous tax law, says financial advisor Bradford Daniel Creger, president & CEO of Total Financial Resource Group in Glendale, Calif.

“An individual must pay income taxes on income received from their own efforts – i.e., their own earnings – as ordinary income," he says, "Merely forming an entity doesn’t change this. It only complicates the returns, but the income tax outcome is the same.”

There is one sense in which the Trump tax plan is exploitable, Creger says, "The S corporation."

The simplest and most prevalent example of a pass-through business, the S Corporation currently allows owners to take both salary income and additional income representing the business’s profits as an S Corp distribution.

The difference between these two types of income is that the salary is subject to payroll taxes and the S Corp distribution is not, Creger explains. By separating salary from business profits, the owner saves a slight amount in taxes by avoiding payroll taxes on the amount received as an S Corp distribution.

But the S Corp distribution business owners receive is taxed at normal, ordinary income tax rates according to their individual income tax bracket. The only savings from this tax strategy under the current system is the payroll tax savings, Creger says.

Under Trump’s tax plan, however, the S Corp distribution is taxed at 15% instead of at the individual’s ordinary rate. Thus, the more owners are able to receive as a distribution of profits from their businesses, the more they are likely to save.

The Bottom Line

What will happen with the issue of how business owners might best exploit a revised tax code remains to be seen. It does shine a new light on a way of reducing taxes that more individuals will surely explore and it would heavily favor entrepreneurs over salaried workers who earn the same level of income.