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S Corporation and Real Estate: Managing Passive Income Wisely


In the intricate world of business entities and real estate, a prevailing concern centers around the compatibility of S corporations and real estate investments. Recently, at a landlords' meeting, a pertinent issue was raised regarding the potential termination of S corporations due to excessive passive income. In this blog post, we’ll delve into this matter, shedding light on the nuances of S corporations, passive income, and real estate investments.

Understanding the Issue

To address the concern, we first need to clarify that not all S corporations face this problem. If your S corporation was initiated from scratch, you need not worry about passive income causing a termination. The issue arises when a C corporation with accumulated earnings and profits is converted into an S corporation. In such cases, the law steps in, triggering a termination if the passive investment income exceeds 25 percent of gross receipts for three consecutive years.

Defining Passive Investment Income

It’s crucial to grasp the definition of passive investment income in this context. Contrary to traditional definitions, for S corporations, it specifically includes rental income when the corporation does not provide significant services. This means that income generated from triple net leases, where minimal services are provided by the S corporation, falls into this category, potentially jeopardizing the S corporation status.

The Dual Problem: Taxation and Termination

The issue doesn’t end with termination alone. For every year that your S corporation, which was once a C corporation, earns net passive investment income, Section 1375 of the tax code imposes taxes on part of that income at the highest corporate tax rate. This double whammy not only increases the taxes the S corporation has to pay but also endangers its tax-favored status.

Crafting a Strategic Approach

The solution lies in a strategic approach. If you're contemplating converting an existing C corporation with earnings and profits into an S corporation that might generate passive income, think twice. It might be wiser to either continue with the C corporation or explore the option of starting fresh with a new S corporation. By sidestepping this legal pitfall, you save yourself from the headache of dealing with passive income problems that could potentially destabilize your S corporation.


In the intricate realm of S corporations and real estate investments, knowledge is power. Understanding the specific circumstances under which an S corporation might face termination due to passive income is vital for making informed decisions. By aligning your business strategies with this knowledge, you can navigate the complexities effectively. Whether you opt for a new S corporation or stick with a C corporation, being aware of these regulations empowers you to make decisions that are not only financially sound but also legally secure. Remember, in the world of business, informed choices pave the way for long-term success.

Disclaimer: Laws and regulations are subject to change, and readers are advised to consult EPL advisors for personalized advice and compliance with specific state requirements. This information is not specific advice and is meant for general education.

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