S Corporations for NRIs

S corporations are corporations that elect to pass corporate income, losses, deductions, and credits directly through to their shareholders for federal tax purposes. Shareholders of S corporations report the flow-through of income and losses on their personal tax returns and are assessed tax at their individual income tax rates. This allows S corporations to avoid double taxation on corporate income. S corporations are responsible for tax on certain built-in gains and passive income at the entity level.

To qualify for S corporation status, the corporation must:

  • Be a domestic corporation
  • Have only allowable shareholders
    • May be individuals, certain trusts, and estates and
    • May not be partnerships, corporations or non-resident alien shareholders
  • Have no more than 100 shareholders
  • Have only one class of stock
  • Not be an ineligible corporation (i.e. certain financial institutions, insurance companies, and domestic international sales corporations)

Shareholder Requirements:

Shareholders must be U.S. citizens or residents (not nonresident aliens), and must be natural persons, so corporations and partnerships are ineligible shareholders. However, certain trusts, estates, and tax-exempt corporations, notably 501(c)(3) corporations, are permitted to be shareholders.
Spouses (and their estates) are automatically treated as a single shareholder.

An S corporation may only have one class of stock. A single class of stock means that all outstanding shares of stock confer “identical rights to distribution and liquidation proceeds,” i.e. profits and losses are allocated to shareholders proportionately to each one’s interest in the business. Differences in voting rights are disregarded, which means that an S corporation may have voting and nonvoting stock.
The S corporation election must typically be made by the fifteenth day of the third month of the tax year for which the election is intended to be effective, or at any time during the year immediately preceding the tax year. Congress has directed the IRS to show leniency with regard to late S elections. Accordingly, often, the IRS will accept a late S election.

Stock requirements:

An S corporation may only have one class of stock. A single class of stock means that all outstanding shares of stock confer “identical rights to distribution and liquidation proceeds,” i.e. profits and losses are allocated to shareholders proportionately to each one’s interest in the business. Differences in voting rights are disregarded, which means that an S corporation may have voting and nonvoting stock.
The S corporation election must typically be made by the fifteenth day of the third month of the tax year for which the election is intended to be effective, or at any time during the year immediately preceding the tax year. Congress has directed the IRS to show leniency with regard to late S elections. Accordingly, often, the IRS will accept a late S election.

Disclaimer:

The legislations and tax rules can change, Please make sure to talk to your CPA and/attorney before you take any decisions.

S Corporations for NRIs

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