QUESTION

Can a president of a sub s corporation not provide federal tax liability to shareholders?

Asked on Jul 18th, 2012 on Taxation - Ohio
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Can a president of a sub-s corp. choose not to provide funds for federal tax liability to all shareholders for the shareholders tax liability from annual profits of that sub-s corp?
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5 ANSWERS

It depends. Most shareholders agreements require distributions to cover taxes as long as the company has sufficient cash. If there is no such agreement, you have no formal duty to do so but, depending on the circumstances, might have an implied duty.
Answered on Jul 25th, 2012 at 1:14 AM

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Elder Law Attorney serving Hollister, CA at Charles R. Perry
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First, I'm not sure what you mean by "providing funds." the power to declare dividends belongs to the board of directors, and not to the president. If the president wishes to declare a dividend to shareholders, but the board refuses to approve the dividend, then no dividend can be paid. Conversely, if the president does not wish to declare a dividend but the board decides otherwise, then a dividend will be paid. There also is nothing that requires the board of directors of a Subchapter S corporation to declare a dividend so that the shareholders have cash to pay their tax liability resulting from the corporation's profits. If the board does declare such a dividend, however, the president must take the necessary actions to comply with the board's directive. In any event, the President of a subchapter S corporation has no duty to ensure that shareholders have funds to pay any tax liability resulting from the corporation's profits. He certainly has no duty to make corporate funds available to shareholders for this purpose.
Answered on Jul 20th, 2012 at 9:15 PM

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Appellate Attorney serving Grosse Pointe Farms, MI at Musilli Brennan Associates, PLLC
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It will depend on the by-laws of the corporation (and its cash available to make such a distribution).
Answered on Jul 20th, 2012 at 7:57 PM

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Real Estate Attorney serving Battle Creek, MI
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Usually, the Board of Directors determines what distributions, if any, to make to the shareholders. As a general matter, the corporation has no obligation to make distributions to the shareholders to cover their tax liabilities.
Answered on Jul 20th, 2012 at 7:34 PM

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The answer depends upon the provisions of the various documents governing the corporation. It also depends upon the voting power of the various shareholders. There is nothing in the law that necessarily requires a president or any officer or director to do what you apparently want done. If you need more information, you should contact a local tax or corporate attorney to discuss this matter in depth. Good luck.
Answered on Jul 20th, 2012 at 7:32 PM

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