Foreign Persons As S Corporation Shareholders: Risky Business – Part I

Often, a small business or start-up will utilize an S corporation election for their business. An S corporation is a corporation formed under a particular State’s incorporation laws (or an organization that has elected to be treated as a corporation for US income tax purposes). The corporation must be eligible to elect S corporation status and its shareholders must consent in writing on Form 2553 to have the corporation elect S corporation status. The Form 2553 must be filed with the Internal Revenue Service (IRS) on or before the 15th day of the 3rd month of the corporation’s tax year in order for the election to be effective as of the beginning of that tax year. If the corporation is on a calendar tax year, the Form 2553 must be filed on or before March 15th in order for the election to be effective for that tax year.

In order to elect S corporation status, a corporation must be a so-called “small business corporation” as specially defined. This means the corporation must satisfy the following major requirements. More detail can be found in the statute itself :

1) It must not have more than 100 shareholders (for this purpose, a husband and wife are counted as a single shareholder; in addition “members of a family” and their estates are treated as a single shareholder).

2) It must be a “domestic” corporation – that is, a corporation organized under the laws of any US State or US territory.

3) Shareholders may only be individuals, estates or certain trusts – partnerships and corporations cannot be shareholders.

4) All shareholders must either be US citizens or US “residents” under the income tax laws (e.g., a green card holder or an individual meeting the so-called “substantial presence” test)

5) The corporation may have only one class of stock.

Taxation of S Corporations

One of the major benefits of making an S corporation election is the “flow through” tax treatment available to the shareholders. Unlike a regular (so-called “C” corporation), making an S election means the income earned by the corporation will not be taxed at the corporate level. All of the income of the S corporation “flows through” to its shareholders and is taxed to them at the shareholder level on their individual income tax returns even if the shareholders have not received any distributions from the S corporation. The general principle is that all items of the S corporation’s income, deductions, gains and losses are allocated among, and passed through to its shareholders in accordance with each shareholder’s respective ownership interest in the corporation. In contrast, a C corporation is taxed on its income first, at the corporate level. Later on, when the C corporation makes a distribution of its after-tax profits to its shareholders, the shareholders are taxed on the dividend received which must be reported on their individual US income tax returns. Thus, the S election serves as a mechanism to avoid “double taxation” (i.e., taxation once at the corporate level and again at the shareholder level).

In addition to filing an annual information return with the IRS using Form 1120S, the S corporation must provide each of its shareholder with a Schedule K-1. This Schedule K-1 permits the individual shareholder to understand his or her share of the items of the S corporation’s income, deduction, gain and loss, based on the shareholder’s ownership interest in the corporation and is needed by the shareholder to properly complete his own US income tax return.

Nonresident Aliens Will Threaten S Corporation Status

A corporation’s tax status as an S corporation can be terminated either voluntarily (shareholders agree to revoke it) or involuntarily. In the case of a voluntary revocation of an S election, shareholders holding more than one-half of the shares of stock of the corporation on the day on which the revocation is made must consent to the revocation. An involuntary termination can occur if the corporation ceases to meet the requirements that are imposed for making the S corporation election in the first place (i.e., it fails to continue to meet the definition of a “small business corporation”). For example, an involuntary termination could occur if the corporation suddenly had more than 100 shareholders, or, if it took on a shareholder that was other than an individual, estate, or permitted trust, or if it had a shareholder who was a nonresident alien.

As a general matter, if the S election terminates because of a specific event that causes the corporation to fail to meet the definition of a “small business corporation”, the termination is effective as of the date on which that event occurs. For example, if a resident alien shareholder of the S corporation had his green card rescinded and was not otherwise a US “resident”, the S election would terminate on the same day as rescission of the green card. Having a foreign shareholder can be risky for the S corporation and its other shareholders since they do not have control over the individual’s maintenance of his US “resident” status.

Part II of this blog post will discuss how an inadvertent termination can possibly be prevented even though the S corporation has foreign shareholders.

Original Post By: Virginia La Torre Jeker, J.D.

Virginia La Torre Jeker J.D., has been a member of the New York Bar since 1984 and is also admitted to practice before the United States Tax Court. She has 30 years of experience specializing in US and international tax planning as well as international commercial transactions. She has been based in Dubai since 2001; prior to that time she worked in Hong Kong for 15 years as a US tax consultant for international law firms, major banks (including HSBC) international accounting firms (Deloitte) and trust companies. Early in her career she worked in New York with the top-tier international law firm, Willkie Farr & Gallagher.

Virginia is regularly asked to speak at numerous conferences and seminars for various institutes and commercial organizations; publishes a vast array of scholarly works in her area of expertise, been interviewed by CNN and is regularly quoted (or has her articles featured) in local and international publications. She was recently appointed to the Professional Tax Advisory Council, American Citizens Abroad, Geneva, Switzerland. She was a guest lecturer at the University of Hong Kong, LL.M Program (Law Department) and served as an adjunct Business Law professor at the American University of Dubai and at the American University of Sharjah where she also taught the legal / ethical aspects of internet law and internet based transactions.


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