eMinutes Blog

Electing S Corporation Status in New York

December 15, 2017

In our Comprehensive Guide to State S Election Requirements, we noted that there are only two states—New Jersey and New York—that definitely still require something specifically delineated as a separate state S corporation “election” to be filed for the federal S corporation election to be recognized in those states.

Under New York law, the shareholders of a federal S corporation may elect to be treated as a New York S corporation,[1] if the corporation meets certain criteria. In particular, the corporation must be a federal S corporation and must be taxable under Article 9-A of the New York State Tax Law, and the all of the corporation’s shareholders must consent to the New York S election.[2]

A New York S election is made by filing Form CT-6 (Election by a Federal S Corporation to be Treated as a New York S Corporation) with the New York State Department of Taxation and Finance.[3] To be effective for the tax year, Form CT-6 must be filed on or before the 15th day of the third month of the tax year to which the election will apply.[4] An election made after the 15th day of the third month but before the end of the tax year is effective for the next year.[5] A New York S election may be retroactively validated.[6]

To prove that the corporation is a federal S corporation, a copy of the federal approval letter should be attached to Form CT-6. But because the New York S election deadline is the same as the federal S election deadline, federal approval often may not be received before the New York S election is filed.[7] In that event, the corporation may file its New York S election indicating that the federal election is pending, and then forward a copy of the federal approval to the Tax Department once it is received.[8] Once a state election is made and approved by the Tax Department, the corporation remains a New York S corporation as long as it is a federal S corporation and the election is not terminated or revoked.[9]

[1] See N.Y. Tax Law § 660(a); see also id. § 208(1-A) (definitions of “New York S corporation” and “New York S election”).

[2] Instructions for Form CT-6, at 1; N.Y. State Dep’t of Taxation & Fin., S corporations – tax years beginning on or after January 1, 2015.

[3] See N.Y. Tax Law § 660(b); Instructions for Form CT-6, at 1.

[4] Instructions for Form CT-6, at 1. An election made no later than the 15th day of the third month after the beginning of a tax year that is less than 2½ months long will be considered timely filed for that tax year. Id.

[5] Id.

[6] Id.

[7] See 26 C.F.R. § 1.1362-6(a)(2)(ii)(A).

[8] Instructions for Form CT-6, at 1.

[9] Id. at 2. A New York S election is terminated by filing Form CT-6.1 (Termination of Election to be Treated as a New York S Corporation).

Our attorneys are admitted to practice law in California, New York, and Texas.
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