S-Corp Election in West Virginia (Form 2553)

Fact-checked by the LegalGlass editorial team against primary sources · Published Aug 20, 2026 · Last updated Aug 20, 2026

West Virginia has no separate state S-corporation election. You file one form — IRS Form 2553, due within two months and fifteen days of the start of the tax year — and West Virginia follows the federal classification. The entity then files West Virginia Form PTE-100, which replaced the former Form SPF-100.

What the S-Corp Election Actually Is

An S corporation is not an entity type you create at the Secretary of State. It is a federal tax classification applied to an entity that already exists. Your West Virginia LLC remains an LLC under state law — same members, same operating agreement, same liability shield — and the election changes only how the IRS taxes its income. A West Virginia corporation can make the same election.

The reason owners make it is self-employment tax. In a default LLC, each member's full share of profit is exposed to the 15.3% self-employment tax. In an S corporation, the owner-employee takes reasonable compensation as W-2 wages subject to FICA, and the remaining profit is distributed free of self-employment tax. Where profit substantially exceeds a fair salary for the work performed, the savings are real; where it does not, payroll and accounting costs consume them. See S-corp vs LLC and self-employment tax.

Eligibility Requirements

The entity must be a domestic corporation, or an LLC eligible to be treated as one; have no more than 100 shareholders, with family members countable as one; have only allowable shareholders — individuals, estates, and certain trusts, but not partnerships, corporations, or nonresident aliens; have only one class of stock; and not be an ineligible corporation such as certain insurance companies and financial institutions.

For LLCs the one-class-of-stock requirement is the usual obstacle. Operating agreements that give some members a preferred return, a distribution waterfall, or liquidation priority create a second economic class and can invalidate the election. Conform the agreement to equal distribution and liquidation rights before filing Form 2553, not after the IRS raises it.

The Form 2553 Deadline

File Form 2553 no more than two months and fifteen days after the beginning of the tax year the election is to take effect, or at any time during the preceding tax year. For a calendar-year business, that falls in mid-March. A newly formed entity counts the window from the earliest of the date it first had shareholders, first had assets, or first began doing business — not from the date the Secretary of State accepted the formation filing.

If you miss it, the election normally takes effect the following tax year. Rev. Proc. 2013-30 provides a widely used remedy: file the late Form 2553 with a reasonable-cause statement, showing that you intended S treatment from the requested date and have reported consistently. Relief is frequently granted but is not guaranteed, so treat the deadline as real.

There is no filing fee. Form 2553 is mailed or faxed to the IRS service center designated for West Virginia filers in the current instructions — confirm the address in the "Where To File" table each time, since the IRS reassigns them. Every shareholder signs a consent, and an authorized officer signs the form.

How West Virginia Treats the Election

West Virginia follows the federal classification. There is no separate West Virginia S election to file and no state approval to wait for: once the IRS accepts Form 2553, the state treats the business as an S corporation for income tax purposes.

The state-level filing is the pass-through entity return. For tax years 2020 and later that is Form PTE-100, the West Virginia Income Tax Return for S Corporations and Partnerships; the former Form SPF-100 applied to 2019 and earlier, and you will still see it referenced in older material and archived forms. An S corporation's PTE-100 is due on or before the fifteenth day of the third month following the close of the taxable year — March 15 for a calendar-year filer, aligning with the federal Form 1120-S deadline. Extensions use the PTE-100EXT, and an extension of time to file is not an extension of time to pay.

Two related obligations catch owners out. First, an entity with nonresident owners may owe West Virginia withholding on their West Virginia-source income, remitted with the entity return. Second, the pass-through return is informational as to the entity's own income but still must be filed on time; a missed filing generates penalties even when no tax is due.

Reasonable Compensation and Payroll

The entire benefit rests on setting the salary correctly. The IRS requires an owner-employee who performs services to receive reasonable compensation — what you would pay someone else to do the same work in the same market — before taking distributions. Owners who set an artificially small wage to minimize payroll tax are a standing IRS enforcement priority, and reclassified distributions come back with back employment taxes, interest, and penalties.

Payroll is the operational cost of the election. Federally that means tax deposits on schedule, quarterly Forms 941, an annual Form 940, and W-2s each January. In West Virginia it means a withholding account with the Tax Division and an unemployment insurance account with WorkForce West Virginia, plus workers' compensation coverage. Add a payroll provider's fee and a more involved tax return. As a rough screen, the election begins to make sense when net profit runs well above a defensible salary for the owner's role, but the honest answer requires modeling your own numbers with a preparer.

Filing the Election, Step by Step

1. Confirm eligibility. Check shareholder count and type, and read the operating agreement for anything that creates a second class of economic rights.
2. Get an EIN. The entity needs one before filing Form 2553 or running payroll; see how to get an EIN.
3. Benchmark a reasonable salary. Document comparable market pay for your role and hours, and keep the support with your records.
4. Complete Form 2553. Enter the requested effective date, select the tax year, and collect every shareholder's signed consent.
5. File on time. Send it to the service center listed for West Virginia in the current instructions and retain proof of filing or the fax confirmation.
6. Register for West Virginia payroll accounts. Open withholding and unemployment insurance accounts through the One Stop Business Portal before the first payroll.
7. File annually. Form 1120-S federally, Form PTE-100 with West Virginia, Schedules K-1 to owners, and the Secretary of State's $25 annual report between January 1 and July 1.

Staying Compliant in West Virginia

The tax election does not touch your entity obligations. A West Virginia LLC still files the annual report with the Secretary of State — $25, filed between January 1 and July 1 each year, most easily through the One Stop Business Portal — and must continuously maintain a West Virginia registered agent with a physical address in the state. Businesses also hold a Business Registration Certificate from the Tax Division, which must be kept current.

Review the arrangement each year. Confirm the salary is still reasonable as revenue grows, that the entity remains eligible after any ownership change, and that the accounting cost still leaves a net benefit. Revocation is possible, but S status generally cannot be re-elected for five years without IRS consent, so it is not a switch to flip annually. For the entity fundamentals, start with how to form an LLC in West Virginia and what an LLC is.

Frequently Asked Questions

What is the deadline to file Form 2553?

File no more than two months and fifteen days after the beginning of the tax year the election is to take effect, or at any time during the preceding tax year. For a calendar-year business electing for the current year, that puts the deadline in mid-March. Late elections can often still be accepted under Rev. Proc. 2013-30 relief.

Does Form 2553 cost anything?

No. The IRS charges no filing fee for Form 2553. You file it by mail or fax to the service center listed for your state in the current instructions. Any charge you see is a preparer's or filing service's fee, not a government one, and the form is short enough that many owners complete it themselves.

Who can elect S-corporation status?

The entity must be a domestic corporation or an LLC eligible to be treated as one, have no more than 100 shareholders, have only allowable shareholders such as individuals, certain trusts, and estates, have only one class of stock, and not be an ineligible corporation. Nonresident aliens generally cannot be shareholders.

Does West Virginia require a separate S-corp election?

No. West Virginia follows the federal classification, so an entity that is an S corporation for federal purposes is treated as one for West Virginia income tax purposes. The only election you file is IRS Form 2553. At the state level you file the annual pass-through entity return, Form PTE-100.

What West Virginia return does an S corporation file?

Form PTE-100, the West Virginia Income Tax Return for S Corporations and Partnerships. It replaced Form SPF-100, which applied to tax years 2019 and earlier. An S corporation's return is due on or before the fifteenth day of the third month following the close of the taxable year, matching the federal Form 1120-S date.

Do I have to pay myself a salary as a West Virginia S corporation?

Yes. An owner who works in the business must receive reasonable compensation as W-2 wages before taking distributions. That means federal payroll deposits and Forms 941, plus West Virginia withholding registration with the Tax Division and unemployment insurance registration with WorkForce West Virginia.

Related

• S-corp vs LLC (national comparison)
• Business tax overview
• Self-employment tax
• How to get an EIN
• How to form an LLC in West Virginia
• West Virginia registered agent
• What is an LLC?
• How much does an LLC cost?
• S-corp election in Virginia (sibling)
• S-corp election in Ohio (sibling)

Sources

1. IRS — About Form 2553, Election by a Small Business Corporation (no filing fee).
2. IRS — Instructions for Form 2553 (deadline; where to file; signature requirements).
3. IRS — S Corporations (eligibility; 100-shareholder and one-class-of-stock limits).
4. IRS — About Form 1120-S, U.S. Income Tax Return for an S Corporation.
5. IRS — About Schedule K-1 (Form 1120-S).
6. IRS — Limited Liability Company (LLC) (electing corporate treatment).
7. IRS — Paying Yourself (reasonable compensation for S-corporation officers).
8. IRS — Rev. Proc. 2013-30 (relief for late S-corporation elections).
9. West Virginia Tax Division — Pass Through Entity (Form PTE-100 replaced SPF-100; S corporation return due the 15th day of the 3rd month).
10. West Virginia Tax Division — TSD-100, West Virginia Business Taxes.
11. West Virginia Secretary of State — Annual Reports ($25 fee; filed between January 1 and July 1).
12. West Virginia Secretary of State — Limited Liability Companies.
13. West Virginia One Stop Business Portal — Annual Reporting.
14. Legal Information Institute (Cornell) — 26 U.S.C. § 1362, Election; revocation; termination.
15. Legal Information Institute (Cornell) — 26 CFR 301.7701-3 (entity classification election).

LegalGlass provides general information for educational purposes and is not a law firm and is not legal advice or a substitute for advice from a licensed attorney or tax professional. Laws, fees, forms, and deadlines change; verify current requirements with the IRS and the West Virginia Tax Division before acting.