How to incorporate a US Corporation from outside the USA?

http://blog.freshdesk.com/how-to-incorporate-a-us-corporation-from-outs/

by andycroll • 14 years ago

109 38 14 years ago

blog.freshdesk.com

andycroll3• 14 years ago

I'm not super clear on the tax implications of this and they aren't mentioned... any insights?

If you only have a US company, then it can pay salary to workers in other countries and have those workers pay local tax. I think that your country has to have a Double Tax Agreement for that to work. The US company pays US corporate tax.

If you want the money to be funnelled to a company in your local country then you need a set up a Transfer Pricing Agreement. This basically means that your local company charges the US company for services rendered, and the US company charges your customers. You pay local tax on whatever goes to your local company and US tax on whatever remains. The hard part is determining a percentage.

I believe that the rules for this are different per country, but in our case (New Zealand), we needed to set up what is called an "Arms Length Agreement". That is to say, you need to be able to prove that the relationship you have could have formed between any two unrelated companies.

As we are a game company, we called our US company a publisher of our game and we did a 70/30 split with it. This is justified by the fact that you can get a 70/30 split with a fair number of other methods for publishing independent games (for example, the apple app store).

All up we paid several thousand for legal advice and incorporation costs.

bosch• 14 years ago

Do you have Twitter/E-mail? I have a few questions you might be able to answer.

rprasad4• 14 years ago

Transfer pricing requires you to pay market-based rates for services actually rendered by foreign related companies. This generally means the foreign company's costs in performing the service plus a profit percentage.

The percentage is determined based on a "Transfer Pricing Study" of related service companies in the foreign jurisdiction (or region, depending on the industry).

Tax authorities are very quick to challenge transfer pricing arrangements, especially those arrangements lacking documentation of how the percentage was selected. (The agreement will do nothing to help you in this regard. The % is what matters in proving that the relationship could have been formed between unrelated companies.) If the TP arrangement is disregarded, the money paid to the foreign company will be recharacterized. The danger is that the income will be treated as passive dividend income, rather than as "active" income. The distinction between active and passive can affect applicable tax rates, offsets, and other tax consequences.

Many accounting firms and even some law firms will provide transfer pricing studies for relatively low cost, but expect to pay low-to-mid 5 figures.

rprasad4• 14 years ago

Also: Negativefrag's structure has two companies: a New Zealand parent which owns a U.S. subsidiary. Presumably, the IP is held in the NZ company rather than the U.S. subsidiary.

In the OP's post, Freshdesk only has a single company, located in the U.S. It will be (relatively) expensive for Freshdesk to transition to a multi-entity structure that can take advantage of transfer pricing in the way that Negativefrag's company has.

yashchandra2• 14 years ago

One thing to note. The blog writer Girish already had lived in the US before and had a social security number without which I do not think you can get a federal EIN. So if you have never been to the USA, you cannot have a social security number and which means you cannot incorporate? I will stand corrected if someone has better information.

melvinmt• 14 years ago

You can apply for an ITIN or work with a corporate agent who can request the EIN for you.

sanswork• 14 years ago

We have an EIN without the SSN. I can't give you anymore details other than it is possible though since my business partner used an agent to arrange everything for us.

zhoutong• 14 years ago

My agent told me to write "awaiting ITIN" on the line that requires SSN. I could get it in a few days.

girishm2• 14 years ago

You can get an EIN for your company even if you don't have an SSN yourself. Getting bank account without visiting the US is a bit trickier if you don't have an SSN.

yashchandra2• 14 years ago

Ok thanks all. So you can possibly get an EIN using an agent. But I am sure that you cannot incorporate certain entities such as S-corp (which I own btw). But good learning otherwise.

rprasad4• 14 years ago

You cannot incorporate an S-Corporation if you are not a U.S. individual taxpayer (i.e., a flesh-and-blood person who is a citizen or permanent resident of the U.S.).

raasdnil• 14 years ago

Hey Andy, I used http://www.incplan.net/ Jacques is the owner and very helpful. Let him know I sent you along - Mikel.

andycroll3• 14 years ago

How does the tax work for you guys?

SeanLuke2• 14 years ago

It seems he doesn't really understand why one typically incorporates in Delaware.

girishm2• 14 years ago

Hi Sean - When you are looking to incorporate from abroad, Delaware seemed the most obvious and had a good ecosystem around it. You can pay the Franchise tax online and pretty much get most of what you want from the State of Delaware online. Once you are successful and have money we can always change things but as a startup getting up and running quickly was essential and Delaware incorporation was a breeze.

SeanLuke2• 14 years ago

What's missing from your article, and from your response here, is why companies incorporate in Delaware as opposed to, say, Iowa. That reason is: since the turn of the century, Delaware has adopted a variety of tax and corporate laws which are highly, almost absurdly, corporation-friendly. As a result, Delaware has a well-deserved reputation for being a corporate haven.

dfc• 14 years ago

There might be some good info in a recent thread:

Ask HN: How to setup a company in U.S. without being there?

http://news.ycombinator.com/item?id=4122794

andycroll3• 14 years ago

Very nice, missed this.

Seems to me two reasons to set up in the US:

1. For US-based investment 2. For taking payments using excellent services like Stripe, Braintree etc

#2 should be inspiring localized entrepreneurs all over the world. Fix the payment problem and 'boom', instant business.

inopinatus4• 14 years ago

This is a lot of effort to go to just gain the ability to handling recurring payments in USD[1].

I considered a similar path, since here in Australia we are very similarly constrained[2]. However I was not willing to accept the risk and complexity of incorporating in an unfamiliar legal/financial jurisdiction and I really don't feel the OP has made me any more comfortable although they seem flush about it.

Since I have an alternative billing model available that will be acceptable to my customers, I've abandoned the whole subscription approach in favour of annual prepayments.

Instead I have added "solve Australian online service billing" to my list of possible future projects (not a pipedream, issuer/acquirer systems knowledge is in my utility belt).

The guys at Pin (www.pin.net.au) will, hopefully, beat me to it, and I wish them the best because it's a problem seriously needs solving for Australian startups.

[1] Neither Paypal nor Worldpay's recurring options are palatable to me - both are seriously underspecified, and are UX catastrophes to boot.

[2] There is one option available; there is one bank that offers USD-capable merchant accounts, and the signup takes months of paperwork, and has huge up-front and per-txn fees, at least huge from a startup POV.

nl• 14 years ago

Not sure if you've seen it yet, but you might be interested in https://pin.net.au/.

I haven't used it, but it seems to be Stripe-for-Australians...

Edit: now I've read your post properly I see you have seen Pin.

davidw• 14 years ago

> However I was not willing to accept the risk and complexity of incorporating in an unfamiliar legal/financial jurisdiction and I really don't feel the OP has made me any more comfortable although they seem flush about it.

It could be (but I don't know) that while Australia is not too far from the US in terms of the legal/financial stuff, India is not so great, so it's worth going to the US in any event. For instance, here in Italy, I don't think that highly of the legal system, so there is a bit more incentive for some people to take the risk and go abroad like this. Of course, everyone needs to evaluate it according to their own situation.

skyhook_mockups4• 14 years ago

I'm also from Australia and have recently gone through the process of getting a merchant account (from St.George bank).

From stories I heard in the past, I was expecting a horrible experience (banks not being able to grok the concept of digital goods etc). Turns out that either the stories were a furphy or banks have gotten a lot better.

Here's the process I went through.

1. Application

2. Set up a single page website to give a brief overview of product

3. Include TOS and returns policy (adapted from wordpress.com)

4. Wait 7 days for approval

Thats it. One week to get a merchant account with no prior business history. The rates are fairly standard:

1.4%/trans, $33 monthly, $44 anual fee, $33 chargeback fee

I think off the top of my head those rates beat those provided by paypal, stripe, etc. although I'm happy to be corrected if anyone has up-to-date info about them

I'll also be paying $300/yr for gateway fees since I have no desire to handle CC details directly.

robryan3• 14 years ago

St George is excellent, the NAB didn't want to know us but had no problems with St George in the 2 years we have used them.

frontier• 14 years ago

St George really is an exception! I've had all sorts of problems in the past with other banks. In recent times Bankwest has been great too, but St George wins for API's available if you need to do more than just accept payments on the web.

nikcub• 14 years ago

Things have certainly improved in Australia. When I first applied for a merchant account for a startup over 10 years ago the guys at ANZ sent out a sales person to our office who bought along a range of EFTPOS (debit card) terminals to demo.

When we clarified that we required online payments, he chuckled and said 'oh, no way we do that, it is far too dangerous'.

He then proposed a compromise solution where we collect credit card numbers and then punch them manually into the terminal to process payments.

We ended up incorporating in the USA.

inopinatus4• 14 years ago

Ok, but to the topic at hand - are you able to bill directly in USD with St George without the buyer wearing the exchange risk and overseas transaction fee?

I ask because merchant accounts denominated in AUD are widely available, but for USD it still appears that only the NAB have multi-currency support.

robryan3• 14 years ago

As long as you can get away without multi currency transactions. We had a founder in the US so made it easier to incorporate there and get a multi currency merchant account. Only issue is the fees, which are driving us to incorporate in the UK to get a decent GBP rate.

Stripe/ Pin are great but still don't solve multi currency, Pin is offering USD and AUD, haven't seen any rates from them yet though.

skyhook_mockups4• 14 years ago

Are multi-currency payments an issue when selling abroad? I'm totally new to receiving online payments and am genuinely curious about the issues surrounding accepting only a single currency.

As an Australian consumer I'm used to paying in USD and simply seeing a slightly different amount show up on my transaction history (AUD being generally at parity with USD)

Is having multi-currency support important? Does it impact sales? Is using something like money.js to give a close estimate of actual cost good enough?

endgame12• 14 years ago

This is useless. Incorporation is not really the problem. Being outside the US is the problem. Compliance issues in both countries will cost a lot more than the incorporation. They are either ignorant of the issues and not compliant or paying a lot for an expert on international tax.

sbarlster• 14 years ago

What a lovely story. Not specifically the credit card stuff but the hackernews inspired startup story... http://blog.freshdesk.com/the-freshdesk-story-how-a-simple-c...

I find the 'just make the core features work' part interesting. Make my core business processes work with no glitches at a 'reasonable' cost.

I would be interested in a freshdesk tech stack blog entry?

stanislavb• 14 years ago

If you found useful this article you may check this one too - http://news.ycombinator.com/item?id=4138253

rprasad4• 14 years ago

Just a few thoughts on the tax consequences based on a cursory look at the OP's post...

- It appears that the OP will be subject to at least a 15% withholding rate on dividends paid from the US Corp to the Indian parent in addition to the U.S. corporate income taxes paid.

- All IP and IP rights are owned by the U.S. corporation, which will make a future IP migration offshore very expensive. As in, minimum six-figures expensive (possibly even into 9 figures). This could be a serious deterrent to foreign acquirers. IP should be held offshore to the extent possible. Note that holding the IP in the U.S. also has implications for future expansion, as it prevents the use of the most cost-favorable transfer pricing arrangements.

- Worldwide income is subject to U.S. taxation. Their costs will not scale with their income, which will make this very expensive. (U.S. income taxation is preferrable to foreign jurisdictions only if costs scale with expenses, because special deductions or credits in the U.S. tax code can lower the effective tax rate below 10% or even 0%).

Incorporating in the U.S. is easy. The hard part is getting a tax-efficient structure. The OP's structure is not tax-efficient. This will not matter as long as they do not have profits, but it will haunt them once they start having serious earnings or start receiving serious acquisition offers.

How to incorporate a US Corporation from outside the USA?

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