The Internal Revenue Service classifies taxpayers as U.S. citizens, resident aliens, or non-resident aliens. Resident aliens are non-citizens who pass certain IRS tests, such as the “green card test” or “substantial presence test” and thus are subject to U.S. worldwide information and income reporting. An alien who does not pass either of these tests is generally classified as a non-resident alien. However, some taxpayers are classified as “dual status” aliens. As the IRS explains, a dual status alien is an individual who “can be both a non-resident alien and a resident alien during the same tax year.” If you are a dual status or non-resident alien, there are certain factors you must keep in mind when starting a company or doing business in the United States, such as how different business entities compare, what types of entities you may legally own as a non-resident, and what types of tax documents you may need to file.
When forming a business entity in the United States, non-residents (foreigners) must choose between forming a corporation, limited liability company, partnership or a sole proprietorship. However, there are federal laws that prohibit non-residents from owning certain types of businesses and entities.
There are two types of corporations in the United States: S corporations, which are “pass-through entities,” taxed at the individual level only and C corporations that are taxed first at the entity level and subsequently at the shareholder level when dividends are paid. Non-residents may own and operate C corporations but are prohibited from owning S corporations.
Though a non-resident cannot be the owner, or shareholder, of an S corporation, he or she can still avoid double-taxation by forming a limited liability company instead of a C corporation, as there are no citizenship requirements to form an LLC in the United States. An LLC can elect for federal purposes to be taxed as a partnership or as an S or C Corporation. However, a single member LLC taxed as a partnership is a disregarded entity for federal purposes and thus taxed as a sole proprietorship and nonresident aliens are prohibited from electing to have an LLC taxed as an S Corporation. This effectively leaves, LLC’s taxed as C Corporations and LLC’s taxed as a partnership where two or more owners, available to nonresident aliens.
Below, our business tax lawyers have compiled some important issues for non-residents to be aware of when forming a business in the United States.
At the Tax Law Office of David W. Klasing, our international business & tax attorneys and CPAs have decades of experience providing tax planning services for foreign companies and non-residents. Working with entities all over the world, we use our in-depth knowledge of international tax regulations to help make doing business in the United States simpler and more cost-efficient.
From entity selection and formation, to corporate tax compliance, to strategies for minimizing tax liabilities and IRS penalties, our international tax lawyers and CPAs are here to guide your business. Contact us online to schedule a reduced-rate consultation or call the Tax Law Office of David W. Klasing at (800) 681-1295 today.
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