There’s an element of uncertainty involved in every entrepreneurial endeavor. Being your own boss can be liberating, and have many benefits. It also means that you are exposed to the possibility of someone coming after your company.
Even if you have a high tolerance for risk, a claim of any nature can take everything you have built. This is not the type of uncertainty you want to play around with.
This article covers the simple legal structures you can use to eliminate a significant portion of this risk upfront. If you’re an entrepreneur living abroad, and you want the most advantageous company structure, find out how we can create your bespoke plan, here.
How Can You Legally Protect Your Business?
The three main legal structures available to entrepreneurs in the United States are limited liability companies (LLCs), C Corporations (C Corp), and S Corporations (S Corps), named after subsection S of Chapter 1 of the Internal Revenue Code.
All three structures offer limited liability protection to their owners, meaning that all personal assets are protected against debts, losses, and any court rulings against the company.
Someone can still come after your company, but they can no longer come after you. With a legal structure in place, you, as the individual, are now considered a separate legal entity from your business.
LLCs and S Corps not only protect against litigation, but they also shield you from excessive taxation. For one, you can deduct pre-tax expenses under an LLC or an S Corp, reducing your overall tax bill.
In addition, both offer the advantage of pass-through taxation, which means that business profit or loss is not taxed at the business level but is “passed through” to the owner and taxed at the individual level. This prevents business owners from paying both personal and corporate taxes on the same income.
C Corps is different from LLCs and S Corps in this regard. Under a C Corp structure, double taxation is levied – at the business level and the individual level. However, profits from a C Corp can be reinvested into the business as retained earnings which are tax-exempt.
It also allows for an unlimited number of shareholders, making it an excellent option for massive multinational corporations.
For all the benefits that they share, there are also numerous differences between the functionality and utility of S Corps, C Corps, and LLCs.
For instance, while S Corp and LLC allow for pass-through taxation, only an LLC is considered a “pass-through entity” in which all income and expenses are reported on the personal income tax return of the LLC owner.
S Corp owners, on the other hand, pay themselves a salary and then receive distributions from any additional profits their corporation may earn, which are taxed at a lower rate.
Many of these benefits vary widely depending on both the citizenship and residence of the owner. While someone living in the United States will enjoy all the benefits of limited liability protection under either structure, US citizens living abroad and foreign persons will enjoy far more tax benefits than someone operating their business from within the US.
But let’s take these differences one by one. Up next, we’ll examine the various advantages and disadvantages of S Corps, C Corps, and LLCs. From there, we’ll look at the best use of these structures, depending on your citizenship and residence.
Advantages of An S Corp
An S Corp is called a “disregarded entity,” meaning that the business does not exist as a US taxpayer, and all taxation is passed through to the owner and paid on their personal income tax return.
While LLCs have the same tax status, S Corps have several distinct characteristics vs. limited liability companies that may make them more advantageous for a business.
1. Lower Overall Tax Rate: An S Corp is allowed to pay its employees a “reasonable” salary which can then be deducted from business expenses along with federal taxes and FICA. Self-employment tax is only applied to the amount paid out as salary and not to the entire net income of the S Corp. All remaining profits can then be distributed to the owners as dividends, which are taxed at a rate lower than income.
2. The Ability to Sell Stock: While an LLC can only sell interest in the company, an S Corporation can sell stock. There are some limitations to this option, however. For instance, there is a limit of 100 shareholders. Each shareholder is taxed as a partnership, adding a fraction of the corporation’s expenses and profits on their individual tax return based on the number of shares they own.
3. Greater Appeal to Investors: The fact that S Corps can sell the stock, accompanied by the legal demand for greater formalities from the structure, means that S Corps are much more appealing to investors than LLCs. However, these increased formalities can also mean more work on your end.
For instance, S Corps must comply with extensive reporting requirements, maintain a firm management structure, hold initial and annual director and shareholder meetings, adopt bylaws, and keep minutes with corporate records.
Disadvantages of An S Corp
If you are running a fast-growing business and plan to bring investors on board, setting up an S Corporation may be the right choice. However, there are several disadvantages to this legal structure that you should be aware of as well.
As mentioned, S Corps have much stricter guidelines than limited liability companies (LLCs).
For instance, they have a passive income limitation that dictates that no more than 25% of total gross receipts can come from passive activities. They also cost more to set up.
Beyond these restraints, some of the bigger disadvantages include:
1. Citizenship Restrictions: One of the biggest disadvantages is that you must be a US citizen or resident in order to set up an S Corp. This means that all foreign persons (non-resident aliens) are automatically barred from using S Corporations, no matter the circumstance.
2. Investor Limitations: S Corps can only have a maximum of 100 shareholders and are only allowed to offer one class of stock. While this is a step up from an LLC, there are more legal structures available within the US (like the C Corp) that could offer a better setup for your business.
3. Harder to Deduct Losses: The fact that profits and losses are distributed to shareholders in proportion to the interest they hold in the business means that it is much harder to deduct losses under the S Corp structure.
Since you can only deduct losses up to the amount invested, if you invested $10,000 and lost $30,000, you would still only be able to deduct a maximum of $10,000 on your individual tax return. LLCs, on the other hand, have no theoretical limit to the amount you can deduct in business losses.
4. Additional State Taxes: Not all state tax laws will treat S Corp and K-1 income as favorably as the IRS does. California, for instance, imposes a 1.5% franchise tax on S Corp income. And New York City doesn’t even recognize S Corporations as pass-through entities, which means that this particular structure can be subjected to a franchise tax as high as 9%.
While an S Corp certainly has its advantages, the downsides are enough to make many entrepreneurs reexamine their need to attract investors and have access to a lower tax rate.
If you are considering setting up an S Corp, ask yourself whether the decision only makes sense for the immediate future or if the structure makes sense long-term. If it doesn’t, it may not be worth the tax savings to set your business up as an S Corporation.
The transition from LLC to S Corp is relatively easy, but it is much harder to go back once you’ve committed to the S Corp structure.
Advantages of An LLC
By default, a single-member LLC is taxable as a disregarded entity just as an S Corp. However, LLCs have the unique advantage of being able to choose whether or not they will be taxed as a C Corp, partnership, S Corp, or a disregarded entity.
For these reasons and others, an LLC is often considered the most flexible structure for entrepreneurs. Here are some of the other advantages that LLCs can offer:
1. Affordable and Easy to Set Up: Compared to other structures, an LLC is easy and cheap to set up. The paperwork for most single-member LLCs is only a single page, and most states only charge a couple of hundred dollars to register your new LLC. And, with less red tape, there is a good chance that you’ll have fewer accountant and attorney fees as well.
2. Greater Management Flexibility: The corporate governance of LLCs is less complex than for S Corps, requiring less paperwork and fewer internal formalities. While similar formalities are recommended, they are not required, giving you great flexibility in management.
3. Fewer Ownership Restrictions: Unlike S Corps, LLCs can be owned by non-US citizens and residents. They can also be owned by corporations and even certain types of trusts. Foreign ownership is a very advantageous characteristic of LLCs. Limited liability companies can also own subsidiaries without restriction.
4. Less Complicated Taxes: With LLCs, you either file under the Schedule C of an individual return or as a partnership (whereas an S Corp must file Form 112OS). Individual LLC owners do not pay unemployment or disability tax (however, this also means that they don’t get the benefits). LLC owners do not have to take a minimum salary or pay payroll taxes, either.
5. Tax-Efficient Structure for Entrepreneurs Abroad: Because of their unique characteristics, LLCs can create very favorable tax conditions for entrepreneurs who choose to live abroad. Depending on the situation of the individual and the company, it is possible to avoid both dividend withholding taxes and double taxation. However, this is very situation specific.
You must ensure that you do not have local-sourced income, and you have to avoid triggering local CFC rules at all costs.
Limited liability companies are usually the best option when there are multiple owners or, in the case of a partnership. Typically, they are also the best option for most online businesses, from internet marketing to client work and beyond.
Disadvantages of An LLC
However, LLCs do not come without their disadvantages. The most prominent include:
- Questions for Local Tax Treatment Abroad: If you do use an LLC while living and doing business abroad and you do not fit your US company structure into an overall offshore tax strategy, you can actually create more problems for yourself. Some countries do not recognize the LLC structure, which throws into question how your company will be treated under local tax laws.
For instance, LLCs are treated like corporations in Canada. In other countries, LLCs are not covered under tax treaties established with the US, impacting how dividends and losses are treated for tax purposes. If not planned properly, you can risk double taxation or lose your ability to claim deductions by utilizing an LLC.
- Self-Employment Tax: Because you do not have to take a salary with an LLC as you do with an S Corp, you will be required to pay self-employment tax on all of your business income. This also means that you must make quarterly estimated payments to the IRS.
- Potential Loss of Protection: If you do not show a distinct difference between you as the LLC owner and the LLC itself, you may lose the limited liability protection available through an LLC because you pierced the “corporate veil” by blurring the lines between the two entities.
C Corporations vs. LLCs and S Corporations
While S Corporations and LLCs share a range of similarities in structures and tax benefits, a C Corporation is largely a different kind of entity, mostly used by large-scale publicly-traded companies.
One of the reasons corporations create the C Corp structure is to accommodate their growing needs since the C Corp structure allows unlimited shareholders.
Another reason some corporations have to adopt a C Corp structure is that their investors are either legal entities or foreign individuals. Neither of which can invest in an S Corp.
All large publicly-traded US corporations are C Corporations since it is the only structure that caters to all their needs. Private C Corporations also exist, but they’re very rare.
In our article about anonymous LLCs, we mentioned how the state of Delaware is preferred by large-scale corporations to set up their business in, owing to its well-defined and legally-tested corporate regulations.
According to Forbes, over two-thirds of all publicly-traded U.S. companies are incorporated in Delaware. Over 60% of these companies comprise Fortune 500 organizations.
Advantages of A C Corporation
Limited Liability Protection: C Corporations provide limited liability protection to owners and shareholders (like an LLC or S Corp). Under a C Corp structure, owners are not typically responsible on a personal level for business debts and liabilities. This is an important advantage of a C corporation over a sole proprietorship/partnership.
Tax Advantages: Tax advantages from a C Corp are different in nature from the tax advantages acquired from an LLC, or an S Corp. A C Corp can keep its profits in the business as retained earnings and enjoy tax exemptions on it. Many large corporations have managed to retain several billion dollars in profit annually through this avenue.
C Corp benefits include:
Unlimited Number of Shareholders: Any corporation looking to expand beyond the 100-shareholder limit must switch to the C Corp structure.
Easy Transfer of Ownership: Under the C Corps structure, ownership is easily transferable through the sale of stock, unlike other entities such as LLCs, etc.
Stability: A C Corp can exist without original owners. For example, if the owner of the C Corp becomes fatally ill or passes away, it doesn’t affect the business entity.
Investor-Friendly Structure: High-growth startups in need of series funding usually utilize the C Corp structure since it allows foreign individuals and business entities to invest. Something an S Corp prohibits.
Disadvantages of A Corporation
While a C Corp structure comes with various benefits, it also has some disadvantages that we’ll discuss below:
Complex Setup: A huge selling point for LLCs and S Corps is their simple and straightforward structure which is equally easy to set up. A C Corp is completely opposite in this regard. The complexity of a C Corp is not limited to its setup process. It’s equally complex to effectively operate a C Corp. From intense record-keeping to reporting requirements, running a C Corp requires strategic planning and a detailed SOP.
Higher Costs Involved: One of the reasons why small or private businesses avoid C Corp is because of the high costs involved. Forming a C Corp, you can expect several kinds of fees on top of annual reporting charges.
Double Taxation: Of course, one of the biggest disadvantages of a C Corp is double taxation. Shareholders of a C Corporation generally must pay tax on the dividends they withdraw from the corporation. The C Corp pays tax on its income first (corporate level), and the remaining money is distributed to the owners, who pay tax on it again (individual level).
How Citizenship and Residence Can Impact Your Options
It’s important to calculate more than just numbers. Citizenship and residence should also be a factor in your decision making.
US company structures are popular with US citizens and non-citizens alike. As crazy as it sounds, while it is anything but tax-friendly for US citizens, the United States remains a popular destination for foreign entrepreneurs.
While it is not perfect in every way, from an operational and logistical standpoint, the US may be the best option for someone looking to run a business. US infrastructure is relatively solid, and there are still good reasons to have a US bank account.
Plus, establishing a legal structure within the US gives foreign persons easy access to business services like PayPal, Amazon, and others that are otherwise difficult (sometimes impossible) to set up from the outside.
Another draw for foreign persons is that as ironic as it may be, the US has not signed the global information-sharing agreements (CRS, etc.) that over 100 other countries in the world have signed. While the US has forced FATCA on everyone else, they have refused to share information with other countries about who is storing money in the US.
There is no guarantee that this will last, but for now, their refusal means that US LLCs and banks are incredibly attractive to foreign persons looking for greater privacy.
However, there are limitations to the kinds of legal structures foreign persons are allowed to own in the US. And, while US citizens living in the US can use any legal structure that best fits their business, different strategies will apply to US citizens living abroad.
Foreign Persons
Foreign persons include foreign citizens as well as any non-US corporations, partnerships, associations, companies, estates, trusts, or governments.
A foreign person can’t own an S Corp, which leaves them with the option of either forming an LLC or a C Corp. Unless you are raising investment capital, a C Corp does not make much sense, which makes limited liability companies the most viable option.
Fortunately for foreign persons, LLCs are the optimum structure for small-scale foreign investors. They are affordable to establish, easy to maintain, provide individual protection from liability, and allow for taxation as a disregarded entity.
However, signing up for the benefits of a US LLC will also expose foreign persons to the US legal system, FTC, FDA, and the overall litigious environment of the United States.
More importantly, owning a US LLC as a foreign person will subject any foreign owner to IRS filing requirements. In particular, all US LLCs based offshore are required to file Form 5472.
While this does not mean that you should stay away from US LLCs as a foreign person, you should understand what it means to get involved with anything connected to the US government before committing to it so that you can weigh the costs and benefits.
US Persons Living Abroad
If you are a US person, there are two ways to own a US company while living offshore.
1. Direct Ownership: With direct ownership, you hold the business directly in your own name or through a pass-through entity (but not a corporation). While this setup will give you some benefits compared to staying in the US, it is not the optimal situation because you’ll still be subjected to some tax, and your deductions are limited. The specific limitations include:
- Self-Employment Tax: With direct ownership, you will still be subject to the full 15.3% self-employment tax (Social Security and Medicare) on up to roughly $118,000 of your income. Beyond that, your income will be taxed at a rate of 2.9%.
- Limitations on the FEIE: Unless you have a service-based business, if you own your US company directly, you can only exclude 30% of your income from your business under the Foreign Earned Income Exclusion. The other 70% will be considered unearned income, which is not eligible for exclusion under the FEIE.
- Reduced Allowable Deductions: If you maintain direct ownership of your US company while living offshore, you will be subject to the “scale back rule.” This means that your business reductions will be “scaled back” according to the ratio of the FEIE cap to your gross income. So, while your net income may be under the FEIE threshold, you may still owe income tax.
2. Ownership Through a Foreign Corporation: Technically, a foreign corporation is considered a foreign person, which means that if you set up a foreign corporation, it will only be able to own a US LLC. However, since the foreign corporation is not considered a US person, it will grant you several tax advantages when you set up your US LLC that you cannot access through direct ownership.
- No Self-Employment Tax: Foreign persons are not required to pay self-employment tax in the US, and since your foreign corporation is a foreign person for tax purposes, it is not required to pay self-employment taxes. Plus, you will no longer be considered self-employed because your foreign business will hire you and pay you a salary, making you an employee of a foreign corporation.
- The Full FEIE Exclusion: Because your foreign corporation is not considered a US disregarded entity, your business income will not pass through to your individual tax return. Instead, your offshore company can pay you a salary, all of which will be considered earned income that qualifies for FEIE exclusion.
- No Scale-Back Rule: Again, because you are no longer considered self-employed, you will no longer be subject to the scale-back rule, which limits your allowable deductions concerning the FEIE.
With this structure in place, you can legally avoid all US taxes on your first $120,000 (in 2023) of active income by living abroad for most of the year. (For further details regarding the FEIE, you can read our article on the Foreign Earned Income Exclusion)
However, these benefits are only available if your foreign corporation does not have US source income and is not considered to be engaged in a US trade or business. If you can avoid these situations and you incorporate in a low- or zero-tax jurisdiction, you can dramatically reduce your overall tax bill and still own a US LLC.
Who Can Actually Benefit from a Foreign Corporation?
Finally, a word of caution. Not everyone will benefit from setting up a foreign corporation. For instance, someone living in the US could create a full-blown tax nightmare by owning their US LLC through a foreign corporation while still living in the US.
We won’t get into all the details, but suffice it to say that trying this structure while still living in the United States will result in double taxation and liabilities to pay US federal income tax, self-employment tax, branch profits tax, tax on dividends received from the foreign corporation at ordinary income tax rates, passive income taxes, and more files to form(specifically, Form 5472).
So… don’t even go there.
Owning a US LLC through a foreign corporation will only work if you move offshore with your business. And, even if you are offshore, a foreign corporation will only help those who run an actual business.
Someone with a profession versus a business – like a freelancer or solopreneur – will not benefit from setting up a foreign corporation. Professionals are paid for work that they do as an individual, and that work cannot be assigned to another entity like a foreign corporation. (You can learn more about the specific tax situation of freelancers and solopreneurs living abroad here.)
However, while a foreign corporation will not be beneficial to someone with a profession versus a business, that does not mean that freelancers and solopreneurs cannot benefit by owning a US LLC or S Corp.
Having a legal structure in the US will still protect you from liabilities, create a more professional appearance for clients, banks, and other businesses, and grant you the benefits of being taxed as a disregarded entity.
If you choose to set up an LLC, you will be subject to US income tax and self-employment tax on all income from your profession. However, you can also set up an S Corp or elect for your LLC to be taxed as an S Corp and access slightly better tax treatment.
Remember, under this arrangement, you can pay yourself a salary that would be eligible for the FEIE, and then all remaining profits would be distributed and taxed at a lower rate. You would also be able to reduce your self-employment tax to only the salaried income and not the net income of your business.
The Best Option?
Overall, business owners will benefit the most by living overseas, setting up a foreign corporation, and owning a US LLC through that foreign corporation. This is the most advantageous tax structure for US citizen business owners living abroad (even if it means another form to fill out).
Freelancers and solopreneurs living abroad, as well as all US citizens living in the United States, will have to consider their specific business setup alongside the advantages and disadvantages of S Corps and LLCs to determine which structure works best for them.
As with everything we discuss here at Nomad Capitalist, this article discusses general rules that only serve as basic guidelines. US companies can be the solution for various different businesses in specific situations, but they are not always the right answer.
Definite answers can only be given on a case-by-case basis, which is why it is important to make decisions like this based on a holistic strategy. If done right, you can save thousands of dollars and numerous headaches. If you’d like help figuring out which structure works best for you, feel free to reach out, here.
