gc_maine2
04-04 10:27 AM
:confused::confused:
I am excerpting Internal Revenue Code Section 1361 below:
Internal Revenue Code
� 1361 S corporation defined.
(a) S corporation defined.
(1) In general.
For purposes of this title, the term �S corporation� means, with respect to any taxable year, a small business corporation for which an election under section 1362(a) is in effect for such year.
(2) C corporation.
For purposes of this title, the term �C corporation� means, with respect to any taxable year, a corporation which is not an S corporation for such year.
(b) Small business corporation.
(1) In general.
For purposes of this subchapter, the term �small business corporation� means a domestic corporation which is not an ineligible corporation and which does not�
(A) have more than 100 shareholders,
(B) have as a shareholder a person (other than an estate, a trust described in subsection (c)(2) , or an organization described in subsection (c)(6) ) who is not an individual,
(C) have a nonresident alien as a shareholder, and
(D) have more than 1 class of stock.
(2) Ineligible corporation defined.
For purposes of paragraph (1) , the term �ineligible corporation� means any corporation which is�
(A) a financial institution which uses the reserve method of accounting for bad debts described in section 585 ,
(B) an insurance company subject to tax under subchapter L,
(C) a corporation to which an election under section 936 applies, or
(D) a DISC or former DISC.
There is no mention here that the "resident" must be a permanent resident.
Here is an excerpt of the Federal Regulation that defines who is a "resident alien" for taxation purposes:
Reg �1.871-2. Determining residence of alien individuals.
Caution: The Treasury has not yet amended Reg � 1.871-2 to reflect changes made by P.L. 108-357
(a) General. The term �nonresident alien individual� means an individual whose residence is not within the United States, and who is not a citizen of the United States. The term includes a nonresident alien fiduciary. For such purpose the term �fiduciary� shall have the meaning assigned to it by section 7701(a)(6) and the regulations in Part 301 of this chapter (Regulations on Procedure and Administration). For presumption as to an alien's nonresidence, see paragraph (b) of �1.871-4.
(b) Residence defined. An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but, if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien make his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. An alien whose stay in the United States is limited to a definite period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of exceptional circumstances.
Here is the relevant Federal Regulation on Proof of Residence for determining status for tax purposes:
Reg �1.871-4. Proof of residence of aliens.
(a) Rules of evidence. The following rules of evidence shall govern in determining whether or not an alien within the United States has acquired residence therein for purposes of the income tax.
(b) Nonresidence presumed. An alien, by reason of his alienage, is presumed to be a nonresident alien.
(c) Presumption rebutted.
(1) Departing alien. In the case of an alien who presents himself for determination of tax liability before departure from the United States, the presumption as to the alien's nonresidence may be overcome by proof�
(i) That the alien, at least six months before the date he so presents himself, has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien, at least six months before the date he so presents himself, has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(2) Other aliens. In the case of other aliens, the presumption as to the alien's nonresidence may be overcome by proof�
(i) That the alien has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(d) Certificate. If, in the application of paragraphs (c)(1)(iii) or (2)(iii) of this section, the internal revenue officer or employee who examines the alien is in doubt as to the facts, such officer or employee may, to assist him in determining the facts, require a certificate or certificates setting forth the facts relied upon by the alien seeking to overcome the presumption. Each such certificate, which shall contain, or be verified by, a written declaration that it is made under the penalties of perjury, shall be executed by some credible person or persons, other than the alien and members of his family, who have known the alien at least six months before the date of execution of the certificate or certificates.
(c) Application and effective dates. Unless the context indicates otherwise, ��1.871-2 through 1.871-5 apply to determine the residence of aliens for taxable years beginning before January 1, 1985. To determine the residence of aliens for taxable years beginning after December 31, 1984, see section 7701(b) and ��301.7701(b)-1 through 301.7701(b)-9 of this chapter. However, for purposes of determining whether an individual is a qualified individual under section 911(d)(1)(A), the rules of ��1.871-2 and 1.871-5 shall continue to apply for taxable years beginning after December 31, 1984. For purposes of determining whether an individual is a resident of the United States for estate and gift tax purposes, see �20.0-1(b)(1) and (2) and � 25.2501-1(b) of this chapter, respectively.
In summary, I submit to you that if you work in the US for more than 6 months out of a given year, you are a resident alien, and therefore are eligible to set up an S-Corp.
Since I am still learning about this, any input/feedback/logical arguments with relevant proof/citations would be appreciated!
Very good info, thanks for the posting. BUt its still not clear whether the spouse who is on EAD and does not work at all or for that matter 6 months in a given year, will she/he be eligible for setting up a S -corp??
Thanks
sree
I am excerpting Internal Revenue Code Section 1361 below:
Internal Revenue Code
� 1361 S corporation defined.
(a) S corporation defined.
(1) In general.
For purposes of this title, the term �S corporation� means, with respect to any taxable year, a small business corporation for which an election under section 1362(a) is in effect for such year.
(2) C corporation.
For purposes of this title, the term �C corporation� means, with respect to any taxable year, a corporation which is not an S corporation for such year.
(b) Small business corporation.
(1) In general.
For purposes of this subchapter, the term �small business corporation� means a domestic corporation which is not an ineligible corporation and which does not�
(A) have more than 100 shareholders,
(B) have as a shareholder a person (other than an estate, a trust described in subsection (c)(2) , or an organization described in subsection (c)(6) ) who is not an individual,
(C) have a nonresident alien as a shareholder, and
(D) have more than 1 class of stock.
(2) Ineligible corporation defined.
For purposes of paragraph (1) , the term �ineligible corporation� means any corporation which is�
(A) a financial institution which uses the reserve method of accounting for bad debts described in section 585 ,
(B) an insurance company subject to tax under subchapter L,
(C) a corporation to which an election under section 936 applies, or
(D) a DISC or former DISC.
There is no mention here that the "resident" must be a permanent resident.
Here is an excerpt of the Federal Regulation that defines who is a "resident alien" for taxation purposes:
Reg �1.871-2. Determining residence of alien individuals.
Caution: The Treasury has not yet amended Reg � 1.871-2 to reflect changes made by P.L. 108-357
(a) General. The term �nonresident alien individual� means an individual whose residence is not within the United States, and who is not a citizen of the United States. The term includes a nonresident alien fiduciary. For such purpose the term �fiduciary� shall have the meaning assigned to it by section 7701(a)(6) and the regulations in Part 301 of this chapter (Regulations on Procedure and Administration). For presumption as to an alien's nonresidence, see paragraph (b) of �1.871-4.
(b) Residence defined. An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but, if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien make his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. An alien whose stay in the United States is limited to a definite period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of exceptional circumstances.
Here is the relevant Federal Regulation on Proof of Residence for determining status for tax purposes:
Reg �1.871-4. Proof of residence of aliens.
(a) Rules of evidence. The following rules of evidence shall govern in determining whether or not an alien within the United States has acquired residence therein for purposes of the income tax.
(b) Nonresidence presumed. An alien, by reason of his alienage, is presumed to be a nonresident alien.
(c) Presumption rebutted.
(1) Departing alien. In the case of an alien who presents himself for determination of tax liability before departure from the United States, the presumption as to the alien's nonresidence may be overcome by proof�
(i) That the alien, at least six months before the date he so presents himself, has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien, at least six months before the date he so presents himself, has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(2) Other aliens. In the case of other aliens, the presumption as to the alien's nonresidence may be overcome by proof�
(i) That the alien has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(d) Certificate. If, in the application of paragraphs (c)(1)(iii) or (2)(iii) of this section, the internal revenue officer or employee who examines the alien is in doubt as to the facts, such officer or employee may, to assist him in determining the facts, require a certificate or certificates setting forth the facts relied upon by the alien seeking to overcome the presumption. Each such certificate, which shall contain, or be verified by, a written declaration that it is made under the penalties of perjury, shall be executed by some credible person or persons, other than the alien and members of his family, who have known the alien at least six months before the date of execution of the certificate or certificates.
(c) Application and effective dates. Unless the context indicates otherwise, ��1.871-2 through 1.871-5 apply to determine the residence of aliens for taxable years beginning before January 1, 1985. To determine the residence of aliens for taxable years beginning after December 31, 1984, see section 7701(b) and ��301.7701(b)-1 through 301.7701(b)-9 of this chapter. However, for purposes of determining whether an individual is a qualified individual under section 911(d)(1)(A), the rules of ��1.871-2 and 1.871-5 shall continue to apply for taxable years beginning after December 31, 1984. For purposes of determining whether an individual is a resident of the United States for estate and gift tax purposes, see �20.0-1(b)(1) and (2) and � 25.2501-1(b) of this chapter, respectively.
In summary, I submit to you that if you work in the US for more than 6 months out of a given year, you are a resident alien, and therefore are eligible to set up an S-Corp.
Since I am still learning about this, any input/feedback/logical arguments with relevant proof/citations would be appreciated!
Very good info, thanks for the posting. BUt its still not clear whether the spouse who is on EAD and does not work at all or for that matter 6 months in a given year, will she/he be eligible for setting up a S -corp??
Thanks
sree
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gsthantry
07-20 09:24 AM
Thanks IV
Order Details - Jul 20, 2007 8:48 AM CDT
Google Order #923744015668350
Order Details - Jul 20, 2007 8:48 AM CDT
Google Order #923744015668350
bhavinkanani
08-02 04:06 PM
I just spoke to a lady at USCIS and she told me they just started working on case receipts for July 2nd and onwards so in next couple of weeks most of you who filed in first week of july should see their receipts..this is what she told me and she sounded very authentic..
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ramus
07-06 12:20 PM
Thank you.. I am sure this thread is going to get more and more visits..
I have changed the thread title.
I have changed the thread title.
more...
sledge_hammer
05-28 06:01 PM
Less than 20% huh? FHA or Conventional?
I finally got the Loan Approved !
The underwriters was OK with my H1B + I-140 Approval + I-485 Reciept.
Thank you all for the tips and leads.
After a long 60 day wait, I m finally getting the house on Monday. :)
I finally got the Loan Approved !
The underwriters was OK with my H1B + I-140 Approval + I-485 Reciept.
Thank you all for the tips and leads.
After a long 60 day wait, I m finally getting the house on Monday. :)
marwan234
09-04 01:27 PM
Hi,
I live in colorado...my H1B is going to expire Oct 27...I have not applied for H1B Extn. yet...But i have EAD...According to colorado DMV i should be able to use EAD for driving license extn...but does using EAD invalidates my H1B??...i am planning to apply for my H1B extn this week...but i won't be able to get approval in 3 weeks (assuming i do premium processing)...Please help me.
Presenting your EAD to DMV for verification does not invalidate your H1B status. Only when you present it to your employer and if he fills out form I-9 and if USCIS requests verification of employment then you will need to worry about that.
I live in colorado...my H1B is going to expire Oct 27...I have not applied for H1B Extn. yet...But i have EAD...According to colorado DMV i should be able to use EAD for driving license extn...but does using EAD invalidates my H1B??...i am planning to apply for my H1B extn this week...but i won't be able to get approval in 3 weeks (assuming i do premium processing)...Please help me.
Presenting your EAD to DMV for verification does not invalidate your H1B status. Only when you present it to your employer and if he fills out form I-9 and if USCIS requests verification of employment then you will need to worry about that.
more...
bpratap
05-28 05:37 PM
My Loan is not Jumbo loan, its under 400K
I don't have 20% down. But I was speaking to the Loan officer, he was telling, it doesn't matter if you put more down or not, 3yr forward continuous visa is req. I never heard this earlier.
I finally got the Loan Approved !
The underwriters was OK with my H1B + I-140 Approval + I-485 Reciept.
Thank you all for the tips and leads.
After a long 60 day wait, I m finally getting the house on Monday. :)
I don't have 20% down. But I was speaking to the Loan officer, he was telling, it doesn't matter if you put more down or not, 3yr forward continuous visa is req. I never heard this earlier.
I finally got the Loan Approved !
The underwriters was OK with my H1B + I-140 Approval + I-485 Reciept.
Thank you all for the tips and leads.
After a long 60 day wait, I m finally getting the house on Monday. :)
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paskal
12-18 05:50 PM
you are right, and it would be nice, however
it's clear our funds are not exactly astronomical.
so let's concentrate on building them up first along with our membership.
then we can sit back and worry about how much more is really needed....
it's clear our funds are not exactly astronomical.
so let's concentrate on building them up first along with our membership.
then we can sit back and worry about how much more is really needed....
more...
sparky_jones
03-05 09:49 PM
My PD is March-2003 and I didn't get the labor cleared till Late 2006
I just can't help wondering how did you get your labor in 2004 with the PD of May-2003? How come snake of BEC didn't bite you? :)
Not everyone from 2003 landed in the BECs. In those days, the processing time depended a lot on the state where the labor was filed from (and also on whether the case was filed in the RIR track, or the Non RIR track). My PD was Aug 2003 in the Non RIR track in MA. A friend of mine had a PD of May 2003 in the RIR track, also from MA. His labor was cleared in early 2004 before the BEC hell began. I got stuck in BEC. As luck would have it, retrogression struck and now we are both in the same boat!
I just can't help wondering how did you get your labor in 2004 with the PD of May-2003? How come snake of BEC didn't bite you? :)
Not everyone from 2003 landed in the BECs. In those days, the processing time depended a lot on the state where the labor was filed from (and also on whether the case was filed in the RIR track, or the Non RIR track). My PD was Aug 2003 in the Non RIR track in MA. A friend of mine had a PD of May 2003 in the RIR track, also from MA. His labor was cleared in early 2004 before the BEC hell began. I got stuck in BEC. As luck would have it, retrogression struck and now we are both in the same boat!
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ravi.shah
08-24 09:37 AM
No point in bashing each other guys....
Its not like, USCIS is reading these forums and are going to do something about it.
Just take it easy....
Its not like, USCIS is reading these forums and are going to do something about it.
Just take it easy....
more...
GCwaitforever
01-23 03:52 PM
After a looo...ong wait, finally my labor petition is certified according to the web site.
PD: May 2002
EB2, Non-RIR
Remanded as TR from RIR in 2003
Made it to Regional in 2004
Ended up in BEC in Feb 2005
Certified as of today !!!
PD: May 2002
EB2, Non-RIR
Remanded as TR from RIR in 2003
Made it to Regional in 2004
Ended up in BEC in Feb 2005
Certified as of today !!!
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rajusk
09-10 04:42 PM
Friends,
I just contributed $100 for the campaign.
I will be there in DC on the 18th. Still debating whether to ride the bus or do a ride share.
I live in the NJ area
Hello friends - Just contributed $100..(Google Order # 265811536249307)
Appreciate all the help & effort IV is doing for us..!! Thanks a ton.!! Will be there in all our might on Sept. 18th...!!! GOD BLESS IV...!!!
I just contributed $100 for the campaign.
I will be there in DC on the 18th. Still debating whether to ride the bus or do a ride share.
I live in the NJ area
Hello friends - Just contributed $100..(Google Order # 265811536249307)
Appreciate all the help & effort IV is doing for us..!! Thanks a ton.!! Will be there in all our might on Sept. 18th...!!! GOD BLESS IV...!!!
more...
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ashokmohan
06-13 10:45 AM
You just paid without exposing your financial information.
$ 100
Receipt ID: 5190-9283-7820-4961
An email with your order summary has been sent to ashokmohanrajes
$ 100
Receipt ID: 5190-9283-7820-4961
An email with your order summary has been sent to ashokmohanrajes
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ragz4u
03-09 12:06 PM
They have already moved to Title 3 of the markup really quickly (and I mean REALLY QUICKLY). Hopefully they will move past Title 3 soon too and get onto Title 4 and 5 hopefully on Wed.
As always, if work doesn't hurt us too bad, we'll post updates here
Hope this helps
As always, if work doesn't hurt us too bad, we'll post updates here
Hope this helps
more...
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h1techSlave
07-15 04:35 PM
I have opted for Bill pay to avoid the hassle of sending a cheque.
Bill pay confirmation number from BOA is 7YFKN-7G411 ($10)
Bill pay confirmation number from BOA is 7YFKN-7G411 ($10)
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amitjoey
05-06 03:54 PM
The calls need to be in hundreds a day not 3 or 4 calls a day.
more...
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pappu
06-10 01:08 PM
USCIS to Issue Two-Year EAD for I-485 Waiters at End of June 2008
The Secretary of the Department of Homeland Security announced on 06/09/2008 that the DHS would start issuing two-year EAD beginning from end of June 2008 for the I-485 filers. Hooray!
Announcement: "I'm also pleased to announce that we will be extending the validity period of the employment authorization documents that we issue to individuals who are waiting adjustment of status to lawful permit residenture or in colloquial phrase, the green card. Currently, adjustment applications are granted employment authorization documents with only a one year maximum validity. Beginning later this month, we'll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year. This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year. It's going to cut the paperwork there."
That is the victory due to our admin fixes campaign. Your thousands of letters are working here.
We had received good feedback in our meetings with the administration.
The whole process of making final announcements is just too slow!!
We recently had another meeting to discuss one more admin fix item that has not been addressed yet and was part of our letters. Let us hope some decision comes out soon enough.
The Secretary of the Department of Homeland Security announced on 06/09/2008 that the DHS would start issuing two-year EAD beginning from end of June 2008 for the I-485 filers. Hooray!
Announcement: "I'm also pleased to announce that we will be extending the validity period of the employment authorization documents that we issue to individuals who are waiting adjustment of status to lawful permit residenture or in colloquial phrase, the green card. Currently, adjustment applications are granted employment authorization documents with only a one year maximum validity. Beginning later this month, we'll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year. This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year. It's going to cut the paperwork there."
That is the victory due to our admin fixes campaign. Your thousands of letters are working here.
We had received good feedback in our meetings with the administration.
The whole process of making final announcements is just too slow!!
We recently had another meeting to discuss one more admin fix item that has not been addressed yet and was part of our letters. Let us hope some decision comes out soon enough.
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seahawks
07-06 02:34 AM
let me ask you this. did anyone from "leadership" call/email/contact you when you were inactive/busy with your life. if the leaders did not call/email you, how will you know if your help is needed. i don't see how its u'r fault
yep, they did, they called email me and asked me to contact other people and organize in a state chapter level. They are also helping on getting other people to help me mobilize members from a state chapter level. The point is the sense of urgency on how we need to move forward together. There is absolutely no room for confusion and I agree when people dont see results, there is always suspicion. But to build an organization from scratch is no easy task, we must recognize that and be respectful of people who do put their time and efforts to make things happen. We all must channelize our energy to making this successful. Everyone has their opinions and I respect that, but I am more interested on hearing solutions if you see there is no progress. Simply asking for change but knowing what change means to all of us will have no takers!
yep, they did, they called email me and asked me to contact other people and organize in a state chapter level. They are also helping on getting other people to help me mobilize members from a state chapter level. The point is the sense of urgency on how we need to move forward together. There is absolutely no room for confusion and I agree when people dont see results, there is always suspicion. But to build an organization from scratch is no easy task, we must recognize that and be respectful of people who do put their time and efforts to make things happen. We all must channelize our energy to making this successful. Everyone has their opinions and I respect that, but I am more interested on hearing solutions if you see there is no progress. Simply asking for change but knowing what change means to all of us will have no takers!
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saimrathi
07-12 10:34 AM
Where did you get your DL renewed? Which state? :confused:
As someone else pointed out, if you don't drive will he/ she won't get a H1B?
This does not make sense.
I just renewed my DL in and BMV did not even ask for my visa/ passport validity and they issued me 5 years renewal (my visa expires in Oct 2008).
I can understand that based on your visa expiry date, BMV may issue only limited time DL.
I know each state has jurisdiction on these matters but there should be basically similar approach.
As someone else pointed out, if you don't drive will he/ she won't get a H1B?
This does not make sense.
I just renewed my DL in and BMV did not even ask for my visa/ passport validity and they issued me 5 years renewal (my visa expires in Oct 2008).
I can understand that based on your visa expiry date, BMV may issue only limited time DL.
I know each state has jurisdiction on these matters but there should be basically similar approach.
needhelp!
05-28 05:44 PM
Thanks for your contribution. Please join us also in calling the important list of representatives: http://immigrationvoice.org/forum/showthread.php?t=19339
Contributed $100 and ready to volunteer...
Receipt ID: 1265-7063-2043-8518
Contributed $100 and ready to volunteer...
Receipt ID: 1265-7063-2043-8518
Kodi
06-29 02:53 PM
My labor was filed May 8th so its only 6 months before my H1 expire.
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