Can I Have Non-Citizens as Members or Managers When I Form a LLC?
Full Question:
Answer:
If the Member is a nonresident alien, the LLC then cannot elect to be taxed as an "S" corporation, since nonresident aliens are not allowed as owners. Some countries consider LLCs to be corporations for their purposes, which means losses may not be recognized in the personal tax return and the income earned form owning part of the LLC, would be taxed as a dividend.
What ever country the member of the LLC is in, please have them consult with a tax advisor who is familiar with the tax treaty between their country of citizenship/tax residence and the US if a treaty does indeed exist
Please see the following NY laws:
See also:
http://www.avvo.com/legal-answers/what-are-the-tax-implications-for-a-non-citizen-wh-199785.html
§ 410. Qualification of managers. (a) Unless otherwise provided in the
operating agreement, a manager may, but need not, be a member of the
limited liability company.
(b) The operating agreement may prescribe qualifications for managers.
§ 203. Formation. (a) One or more persons may act as an organizer or
organizers to form a limited liability company by (i) preparing the
articles of organization of such limited liability company in accordance
with subdivision (e) of this section, (ii) executing such articles of
organization in accordance with section two hundred seven of this
article and (iii) filing such articles, entitled "Articles of
organization of... (name of limited liability company) under section two
hundred three of the Limited Liability Company Law," in accordance with
section two hundred nine of this article.
(b) An organizer may, but need not be, a member of the limited
liability company that he or she forms.
(c) At the time of its formation, a limited liability company must
have at least one member.
(d) A limited liability company is formed at the time of the filing of
the initial articles of organization with the department of state or at
any later time specified in the articles of organization, not to exceed
sixty days from the date of such filing. The filing of the articles of
organization shall, in the absence of actual fraud, be conclusive
evidence of the formation of the limited liability company as of the
time of filing or effective date if later, except in an action or
special proceeding brought by the attorney general. A limited liability
company formed under this chapter shall be a separate legal entity, the
existence of which as a separate legal entity shall continue until the
cancellation of the limited liability company's articles of
organization.
(e) The articles of organization of a limited liability company shall
set forth:
(1) the name of the limited liability company;
(2) the county within this state in which the office of the limited
liability company is to be located or if the limited liability company
shall maintain more than one office in this state, the county in which
the principal office of the limited liability company is to be located;
(3) if the limited liability company is to have a specific date of
dissolution in addition to the events of dissolution set forth in
section seven hundred one of this chapter, the latest date on which the
limited liability company is to dissolve;
(4) a designation of the secretary of state as agent of the limited
liability company upon whom process against it may be served and the
post office address within or without this state to which the secretary
of state shall mail a copy of any process against the limited liability
company served upon him or her;
(5) if the limited liability company is to have a registered agent,
its name and address within this state and a statement that the
registered agent is to be the agent of the limited liability company
upon whom process against it may be served;
(6) if all or specified members are to be liable in their capacity as
members for all or specified debts, obligations or liabilities of the
limited liability company as authorized pursuant to section six hundred
nine of this chapter, a statement that all or specified members are so
liable for such debts, obligations or liabilities in their capacity as
members of the limited liability company as authorized pursuant to
section six hundred nine of this chapter; and
(7) any other provisions, not inconsistent with law, that the members
elect to include in the articles or organization for the regulation of
the internal affairs of the limited liability company, including, but
not limited to, (A) the business purpose for which the limited liability
company is formed, (B) a statement of whether there are limitations on
the authority of members or managers or a class or classes thereof to
bind the limited liability company and (C) any provisions that are
required or permitted to be included in the operating agreement of the
limited liability company pursuant to section four hundred seventeen of
this chapter.
