Rethinking Taxation of Privately Held Businesses

This article proposes the repeal of current Subchapters K and S, as well as the removal from the ambit of Subchapter C of all privately held corporations and the replacement of the current tax regime for privately held business with a new regime under which all privately held businesses (including wholly owned corporations and limited liability companies, and unorganized sole proprietorships) would be taxed at the entity level under a uniform rate schedule, regardless of the form of organization. All publicly traded companies, and their controlled corporate subsidiaries, would continue to be governed by all of the structural rules of Subchapter C (and any other relevant Code sections outside of Subchapter C.) Nevertheless, the profits of privately held companies subject to the entity-level tax would not be double taxed upon distribution. Rather, a single-level tax, at the owners' tax rates would be achieved by applying the imputation-credit model for corporate tax integration to all distributions (including profits of a sole proprietorship that have not been reinvested) to the equity owners of the entity. As a consequence of the abolition of pass-through taxation and the imposition of an entity-level tax, entity losses no longer could be passed through to the entity's owners to offset positive income from other sources. This proposal emanates from decades-long problems with the administration of Subchapter K, governing the taxation of partnerships, and the incoherence of having three separate regimes — Subchapter C, Subchapter K, and Subchapter S — apply to privately held businesses depending of the form of organization and available elections. While it does not originate as a refinement of recent proposals to reduce the corporate tax rate and to clean up the base, its adoption would facilitate such a move. Because such a high percentage of U.S. business income is now earned by unincorporated business, it would avoid increased distortions in the choice of business entity due solely to tax planning