US LLC with management and substance, how?

Houdini

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I just read the thread https://www.offshorecorptalk.com/threads/anonymous-director-new-company-formation-advise.44120 , where, in what seems like a closing post, it's mentioned that we can get further clarification on how to find someone in the USA to manage our interests for a company, for example, in New Mexico, Wyoming, or Delaware.

This would allow the company to achieve substance status and meet all the requirements needed to obtain a bank account and other financial services connected to the company.

@EliasIT
 
And, most importantly would such a situation create a tax liability? Because I believe pass through taxation is applicable only if there is no US Sourced Income and I believe having employees cancels that.
 
lagloriacubana said:
And, most importantly would such a situation create a tax liability?
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It will make the company liable for US federal taxes in most cases.

lagloriacubana said:
Because I believe pass through taxation is applicable only if there is no US Sourced Income and I believe having employees cancels that.
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You are truly right. The company is not taxable if and only if it is not Executing Trade or Business in the US (commonly shorted as being ETBUS). Having a local employee who is working exclusively for you makes you being ETBUS. (On the other hand, you can have US customers and not become ETBUS if all your business is performed outside the US... yet you can be burdened with sales tax in some cases. Just as a side-note 🙂 )

Nevertheless, there are ways how to manage the issue; I will get back to this next day.

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I am just a simple countryman. Anything I say is only a personal opinion, not a certified advice 🙂

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Well, the promised follow-up:

A.
Houdini said:
This would allow the company to achieve substance status
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If your goal really is to create a substance in the U.S.A. (yes, it might be beneficial in certain cases), be advised that you will be tax liable then no matter what. (Just use the common sense, as any US judge should ”“ and many times, still will: if you have a substance somewhere then you are doing there your business, obviously.)
And yes, hiring a local personnel in the way how @dany did and @EliasIT has described is IMO quite smart. I would personally advise to use some “personal networking” as the best way, especially for a smaller business.

B.
Houdini said:
meet all the requirements needed to obtain a bank account and other financial services connected to the company.
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Nevertheless, you do not need to have a US substance to get a bank account and other financial services for your company.
1) It is true that currently, many US EMIs want you to have US operations. As said above, you do not necessarilly become ETBUS when having US customers; just avoid to have an office or an employee working exclusively for you there. Yet US customers are very often simply a must ”“ for an US EMI; all other can be managed.
2) You can bank outside of the U.S. EMIs like Zen, Verifo (LT), Interpolitan Money (UK); or some Puerto Rican IFE can be the way to go (for a larger business, you can look at some “more typical” offshore bank e.g. at Mauritius, Cook Islands etc.).
3) You can have a bank account (and other services) with a US traditional bank ”“ if someone goes there to manage the issue in person. (A bank usually does not care much about his/her residence, just about having SSN or at least ITIN.)
The smart way how to manage this can be
a) Use a local person who is working not only for you but also for other businesses (to avoid becoming ETBUS). Some professional, fiduciary or so.
b) Use a US expat (or generally a SSN having person, not necessarilly a US citizen) residing abroad but able and willing to travel there from time to time. He/she can work for you even exclusively, no problem.
Note: Tricks ad (3a) and (3b) can of course be used also to ease (1); but if applying some of these hacks, it is usually more effective to go for a brick-and-mortar bank, you will get a broader spectrum of services.

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I am just a simple countryman. Anything I say is only a personal opinion, not a certified advice 🙂

If you think it makes sense, you can like it; if opposite, please, tell me, why I am wrong...
 
How about to make the same thing as people do in Europe for god sake, find a homeless guy to handle the director role and manage a small office where he can sleep and mess around. If you only need the company say 1 - 2 years you could care less.
 
Houdini said:
How about to make the same thing as people do in Europe for god sake, find a homeless guy to handle the director role and manage a small office where he can sleep and mess around. If you only need the company say 1 - 2 years you could care less.
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Well, surely you can do it in this way; nevertheless, I would not recommend it (neither in Europe). Homeless guys usually (exceptions exist, definitely) are neither much clever nor reliable business partners. Hence, it is difficult to predict how long such a company will last and what will be the result...
(I am fully aware that some /probably a lot of/ UK EMIs and a lot of similar companies in the former Soviet block countries were working under such a setup. Yet times are changing...)

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I am just a simple countryman. Anything I say is only a personal opinion, not a certified advice 🙂

If you think it makes sense, you can like it; if opposite, please, tell me, why I am wrong...
 

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