Delaware, u.s.a Limited Liability Company

Transcription

1 Delaware, u.s.a Limited Liability Cmpany

2 Key Pints: Delaware s crprate law is ne f the mst flexible laws in the U.S.A. The Delaware Curt f Chancery is the curt respnsible fr crprate litigatin. It fcuses slely n crprate law and uses judges instead f juries. A Delaware LLC may carry n any lawful business, purpse r activity except insurance and banking. There is n state crprate incme tax fr cmpanies that are frmed in Delaware but d nt transact business there (but there is a franchise tax) There is n requirement t file a tax return in the United States, if all LLC members are nn-us residents and the cmpany des nt d any business in the US Significant Features f a U.S. Delaware LLC The Delaware LLC is an entity that cmbines the limited liability f a crpratin with the pass-thrugh taxatin f a partnership. This feature, when cmbined with nn-u.s. surce incme, means that nn-resident aliens f the U.S.A. can avid all U.S. taxatin when using an LLC. Persnal liability f the Sharehlders is limited t the amunt f their investment in the cmpany, just like a crpratin. Sharehlders (r Members, as they are called) f an LLC can be individuals r any type f entity, frm anywhere in the wrld, and unlimited in number. Furthermre, Sharehlders, directrs and fficers f a crpratin r members r managers f an LLC dn t need t be Delaware residents. N business license is required fr Delaware crpratins nt perating in Delaware. The peratins and management f the LLC is gverned by a written agreement amng its wners that is nt required t be publicly filed r dis clsed t the Delaware Divisin f Crpratins. The agreement can be written in any language and it is nt required t be translated int English. Crprate frmalities like minutes, bylaws, meetings, fficers and directrs can be eliminated in the LLC agreement. A creditr f a member f an LLC cannt seize cntrl f the assets f the LLC, r a member s vting rights. The Delaware curt system ffers, at every level, lng and sphisticated experience in crpratin law matters and a ready willingness t deal with matters n an expedited basis whenever necessary. Tax Implicatins: N inheritance tax is applicable n stck held by nn-residents f Delaware. Shares f stck wned by nn-resident aliens are nt subject t Delaware tax. Over 50% f U.S. publicly traded crpratins and 60% f the Frtune 500 cmpanies are incrprated in Delaware. 1

3 Stckhlders Directrs Officers Stckhlders are the wners f the cmpany Directrs are elected by the Stckhlders Officers are appinted by the Bard f Directrs Stckhlders d nt manage the cmpany Stckhlders are cmpensated with the payment f dividends n their stck Directrs are respnsible fr the verall management f the cmpany Directrs decide if dividend will be given t the Stckhlders. Directrs issue stck in the cmpany and may als wn stck in the cmpany Officers handle the day-t-day business f the cmpany Officers may be cmpensated with stck r may purchase stck at the directin f the Bard f Directrs A Delaware LLC als will prvide greater tax flexibility in areas f distributins and can be used as a valuable tl fr estate planning and wealth transfers. If an LLC is nt taxed as a flw thrugh it is ften taxed as a crpratin (as elected n IRS Frm 8832). Generally, the pssible tax treatments fr LLCs, are: Disregarded entity/single-owner The default frm f rganizatin fr a single individual r rganizatin perating a business that chses t rganize an LLC with a single member. The check-the-bx regulatins permit t elect crprate taxatin. The IRS treats ne-member LLCs as disregarded fr tax purpses. Generally, this means that: (i) The LLC itself des nt pay incme taxes and des nt have t file an incme tax return with the IRS, and (ii) The wner may have the bligatin t file a tax return depending n the facts and circumstances: Nrmally, the single member f an LLC that carries n a U.S. trade r business will have an incme tax filing bligatin. On the ther hand, the single member f an LLC that des nt carry n a U.S. trade r business and nly derives passive incme frm U.S. surces (fr example, dividend r interest incme), will nt have the bligatin t file an incme tax return prvided that the ttal tax liability has been withheld at surce by the withhlding agent (nrmally, thrugh Frm 1042). Tax partnership/multi-owner With limited exceptins, any multi-member dmestic unincrprated business rganizatin (partnership, limited partnership, LLC, business trust) that des nt elect crprate treatment. The IRS treats c-wned LLCs as partnerships fr tax purpses. Cwned LLCs themselves d nt pay taxes n business incme; instead, 2

4 the LLC wners each pay taxes n their lawful share f the prfits n their persnal incme tax returns. Each LLC member s share f prfits and lsses, called a distributive share, shuld be set ut in the LLC perating agreement. Even thugh a c-wned LLC itself des nt pay incme taxes, it must file Frm 1065 with the IRS. This frm, the same ne that a partnership files, is an infrmatinal return that the IRS reviews t make sure the LLC members are reprting their incme crrectly. The LLC must als prvide each LLC member with a Schedule K-1, which breaks dwn each member s share f the LLCs prfits and lsses. Crpratin Any crpratin r unincrprated rganizatin that elects crpratin treatment. Tax Advantages f using US LLC in Internatinal Trade: The United States f America ( US ) is nt knwn as an ffshre financial trading center fr tax purpses. Hwever, being true fr its residents, fr nnresident crprate and individual clients the US tax system ffers sme interesting pssibilities t reduce the verall tax burden by using US limited liability cmpanies ( LLC ) in the field f internatinal trade. LLC s can be incrprated in every state f the US in accrdance with that state s crprate laws. LLC s therefre differ frm state t state. Hwever, all have in cmmn that they prvide limited liability prtectin fr their members, including thse engaged in active management. There is n restrictin n its size and LLC s can have any number f Members. Since its Members may be lcated in lw r tax-exempt (ff-shre) financial jurisdictins, the verall tax burden can substantially be reduced. 3

5 AMERICAS NEW YORK 80 Brad Street, 5th Flr New Yrk City, New Yrk United States f America Cntact: newyrk@frdtrust.cm EUROPE LONDON 4th Flr, Rex Huse 4-12 Regent Street Lndn SW1Y 4RG, United Kingdm Cntact: lndn@frdtrust.cm DUBLIN Blck B The Crescent Building Nrthwd Santry, Dublin Republic f Ireland dublin@frdtrust.cm CYPRUS 1st and 5th Flrs Grivas Digenis Ave. Nicsia, CY-1090 Cyprus Cntact: cyprus@frdtrust.cm MUMBAI Grund Flr, Ismail Building, D. N. Rad Flra Funtain, Mumbai Cntact: Fax: mumbai@frdtrust.cm HYDERABAD 1st Flr, Mid Twn Plaza, Rad N 1 Banjara Hills, Hyderabad, Andhra Pradesh Cntact: Fax: hyderabad@frdtrust.cm SINGAPORE JTC Summit 8 Jurng Twn Hall Rad #24-03 Singapre Singapre singapre@frdtrust.cm HONGKONG 27/F., E - Trade Plaza 24 Lee Chung Street Chai Wan, Hng Kng Cntact: hngkng@frdtrust.cm GCC AND AFRICA DUBAI Nassima Twer 4th, 5th flr, Sheikh Zayed Rad Trade Center District, Dubai PO Bx United Arab Emirates dubai@frdtrust.cm ASIA-PACIFIC BANGALORE Level 14 & 15, Cncrde Twer, UB City 1 Vittal Mallya Rad, Bangalre Cntact: Fax: bangalre@frdtrust.cm