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We want to alert you to tax planning opportunities that exist this year that will allow you to tap into the hard-earned cash of your business at historically low tax costs. If your C corporation has built up substantial earnings and profits over the years, now—before the end of 2010—is an ideal time to consider paying some dividends. This would also apply to C corporations that were recently converted to S corporations who have retained earnings.

Normally, dividends are subject to double taxation. Your corporation pays income taxes on the earnings that generate the dividends, then you have to pay income taxes too when the earnings are paid out to you. This harsh effect has been softened somewhat for the last several years because the maximum dividend tax rate has been only 15%. In 2011, barring any tax legislation, this favorable maximum rate is scheduled to skyrocket. The actual tax rate you will pay on dividends will depend on your marginal ordinary tax rate. However, for taxpayers in the top ordinary tax rate bracket, it looks like the federal tax rate could be as high as 39.6 % next year and beginning in 2013 it could go up another 3.8% to a high of 43.4%.

Although, double taxation is assured, a 15% tax rate may be quite manageable. In addition to getting cash into your hands at historically low tax rates, paying dividends this year may have additional benefits for your corporation:

• Reduce Future Exposure to Accumulated Earnings Penalty Tax. A profitable corporation becomes exposed to the accumulated earnings penalty tax when it accumulates earnings in excess of reasonable business needs and does not pay dividends. Right now, the accumulated earnings tax rate is only 15%. Absent a law change, after 2010, the accumulated earnings tax rate will return to the maximum individual federal rate on ordinary income—39.6% for 2011. Therefore, now is a great time to pay out dividends and reduce your corporation’s exposure to this penalty tax.
• Better Tax Treatment for Distributions in Future Years. To the extent 2010 cash distributions reduce the corporation’s earnings and profits, there’s a greater likelihood that distributions in future years will be treated as tax-free returns of capital or as long-term capital gains (which may once again be taxed at lower rates than dividends).
• Establish a Dividend Paying Record. A history of paying dividends will make it more difficult for the IRS to characterize compensation paid to business owners (which is deducible by the corporation) as disguised dividends (which aren’t deductible). In other words, future compensation amounts will be easier to defend as reasonable if at least some dividends have been paid in the past.