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FAQ

Do foreign members of a CA LLC need to file any tax forms apart from 1065 andCA 568?
When there is a foreign partner in an LLC that partner must have a USTaxpayer Identification Number “ITIN” and file a US income tax return. Thismust be obtained if the LLC is engaged in a US trade or business i.e. if itwill make money. The foreign partner of the LLC will be deemed to be engagedin a US trade or business and the LLC must withhold 35 of its profits fortaxes paid and filed on a quarterly basis to the IRS. United States Tax lawsrequire that foreigners pay taxes on any earnings made in the United States.Regardless of immigration status the United States will allow foreigners toform a company as long as they have registered for a Taxpayer IdentificationNumber. The process to register is not complex but it can be lengthy. Oncethe application is submitted it can take up to 18 weeks for your TaxpayerIdentification Number to be assigned.Even though the partnership itself does not pay income taxes it must fileForm 1065 with the IRS even if there is no profit. This form is aninformational return the IRS reviews to determine whether the partners arereporting their income correctly. The partnership must also provide a ScheduleK1 to the IRS and to each partner which breaks down each partner’s share ofthe business’s profits and losses. In turn each partner reports this profitand loss information on their individual tax return. A significant issue tomention is that the LLC cannot chose to be taxed as an S corp. since foreigncitizens may not be partners or owners in an Scorporation in accordance withUS law. It may however choose to be taxed as a Ccorporation the standarddefault familiar corporation we all know about.
For a Michigan LLC where we’re completing a federal 1065, do I need to fileany state forms for the LLC?
A2A No.This is a great example of Dunning–Kruger effect Wikipedia in action.BTW you are completing a 1065 without professional guidance I infer NOT abright move. Partnership taxation is probably the most difficult there is todo it right.
Do members of an LLC taxed like a partnership that has two non-resident aliensas its only members need to file their 1040 and K-1 forms if the business hasno US-sourced (or any) income that year? Can filing the 1065 also be skipped?
Sure I can address tax issues here. Generally every tax partnership files areturn as noted in Section 6038a. However one exception does exist. AsTreasury does not require a domestic partnership with no income deductionsor credits to file a return Treasury Regulation Section 1.6031a1. Heredomestic means the LLC has been formed in a particular state in the UnitedStates.A non resident alien person files a 1040 Non Resident tax return and paystaxes if the person has effectively connected income coming from a UnitedStates Trade or Business Section 871b. And the LLC’s business taxpartnership represents the non resident alien’s business Section 875. Andnon resident person still files a tax return reporting 0 taxable income ifheshe has United Trade or Business. Treasury. Regulation Section1.60122b1i.However a non resident with only a partnership interest where suchpartnership has zero activity as noted above has no 1040 non resident filingrequirements as the person’s scenario does not fit the previous paragraphrequirements.So based on your direct situation only as noted in your question the LLC taxpartnership is not required to file and the two non residents individuals donot file a 1040 non resident tax return.Looking at this situation for the coming year. Say the LLC tax partnershiphas effectively connected income coming from a United States Trade orBusiness. Then the tax partnership files and the individual non resident alienpartners file 1040 non resident returns.Further the tax partnership withholds taxes on each partner’s share of incomefrom the partnership under Section 1446. This means the partnership withholdstaxes on the income allocated to each partner. Then the non resident personfiles a 1040 non resident return and either pays any additional tax due orreceives a refund if the partnership withheld more than the individualactually owes in taxes.Partnership tax returns are due 15th day of the third month after year end.The partnership may extend the filing date by five months by filing anextension by the due date Treasury Regulation Section 1.60812a1. Thisextension also applies to the reporting requirements for the withholding taxfor foreign partners but not any taxes due Treasury Regulation Section1.14463b. If the partnership files the return late with no extension inplace Treasury will assess a 200 penalty per partner per month against thepartnership Section 6698.I have completed the above the analysis based on primary tax law. If the factsituations changes in anyway the tax results may change considerably.www.rst.tax
My business partner and I have registered a LLC in Wyoming. We are a softwarestartup and have not yet made any income. Neither of us is a resident of theUSA and we do not operate the business from there, although in the future allour revenue for our software product will be from US businesses. What are ourobligations in regards to filing taxes for the LLC? Is it just form 1065? Dowe also need to file a personal tax return as I understand an LLC is a passthrough entity? Neither of us has an ITIN yet.
A partnership is a passthrough entity meaning all the profits andor losseswill flow through to you the individual owners. You do have to file a Form1065 for the LLC if you are choosing to be a partnership. Individual owners donot need an ITIN to file a 1065 however assuming you and your partner areboth actively involved in operating the business you may still be subject toUS tax and be required to file a 1040NR. Filing a 1040NR would require you toobtain an ITIN. The problem is your earnings from the partnership is incomethat is effectively connected to a US business. Another option is to have the LLC taxed as a CCorporation which is not apassthrough type of entity but taxes all the profits at the business level.The downside to you is that to get funds out of the business you have to payyourself either wages independent contractor fees or dividends. There arepros and cons to all those types of payments and is probably beyond what Icould discuss here as it really depends on your unique situation but therecan be some tax saving opportunities as a nonUS resident owner of a business. Even though you do not have any earnings I would not say it is premature tohire an accountant as decisions you make now can have long lasting impact onyour future earnings and taxes from the business. Unfortunately as a multimember LLC there is no way for you to not file a taxreturn. The only LLC that is not required to file a US federal tax returnevery year is one that is a single member disregarded entity with less than400 of profits. Every other tax form of an LLCpartnership Scorp or Ccorpis required to file a tax return.