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

Part I of this blog post detailed the requirements for eligibility for electing S corporation status, maintaining it, as well as the tax benefits of being an S corporation. It also outlined how S corporation status can be lost. The possible loss of S corporation status becomes very tricky when a foreign shareholder is involved, since nonresident aliens are not permitted to be shareholders in an S corporation. If a foreign national is a shareholder and is a US “resident” for income tax purposes, then S corporation status is fine, but it must be remembered that the other shareholders do not have control over the individual’s maintenance of his US “resident” status.

How to Prevent Inadvertent Termination of S Corporation Status

Steps to prevent the inadvertent termination of S corporation status should be undertaken whenever possible. This post will focus on preventing termination due to the S corporation having a nonresident alien shareholder. It is critical that shares of an S corporation are not transferred to an ineligible shareholder, such as a nonresident alien, or that a resident alien shareholder does not later become a nonresident, after the S election has been made. How can this be accomplished as a practical matter?

A shareholders’ agreement can explicitly prohibit transfers of any shares to any person other than a permitted S corporation shareholder. The agreement can also require as a condition to the ownership or transfer of shares, a certification from the transferee as to his eligibility and require an ongoing covenant to maintain that eligibility so long as he remains a shareholder in the S corporation. When a foreign person owns shares, a covenant that he maintain US tax residency while a shareholder can be included in the shareholder agreement.

Sometimes, however, these provisions may not be sufficient. It can happen that a resident shareholder suddenly loses that status through inadvertence or carelessness. While the other shareholders can possibly have recourse against him, the damage will have been done as the S corporation status will have been lost on the occurrence of the disqualifying event. Possible protection from this can take the form of a clause in the shareholder agreement to which the corporation itself would be a party. The clause could specify that a redemption of shares will be deemed to have occurred on the day before the occurrence of the disqualifying event, with the terminated shareholder being paid for his shares at the fair market value on such date.

IRS Relief for Inadvertent Termination of S Corporation Status

If the above mechanisms fail, and the S corporation status is inadvertently terminated, the IRS may still grant relief. In order to obtain such relief, the corporation must demonstrate that the termination was inadvertent and show that it took steps to correct the situation. In addition, the corporation and all relevant shareholders must agree to make any adjustments the IRS requires that are consistent with the treatment of the corporation as an S corporation.

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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