Incorporating in California as a non-U.S. founder involves two layers of taxation (federal + state), international withholding, beneficial ownership reporting, banking compliance challenges, and immigration constraints. This guide addresses all five areas.
Double Taxation: C-corporations face corporate-level tax plus dividend withholding when distributing to foreign shareholders.
LLC Complications: Pass-through taxation creates U.S. filing obligations and effectively connected income for non-resident members.
S-Corp Prohibition: Nonresident aliens cannot be S-corporation shareholders under any circumstances.
Banking Friction: Enhanced KYC requirements and foreign beneficial owner verification create practical barriers.
Work Authorization: Owning a U.S. corporation does not provide work authorization to operate within the United States.
Despite the tax burden, California C-corporations provide clean separation from U.S. tax system for foreign owners, avoid individual filing requirements, and generally aren't subject to U.S. capital gains tax on stock sales for non-residents.
| Entity Type | Tax Treatment | Foreign Owner Impact | Complexity |
|---|---|---|---|
| CA C-Corporation | Corporate-level tax (21% federal + CA state) | 30% dividend withholding, no individual filing required | Medium |
| CA LLC | Pass-through (partnership/disregarded) | ECI flows through, requires 1040-NR filing, Form 5472 if disregarded | High |
| Foreign Corp Registered in CA | Form 1120-F, branch profits tax, CA franchise tax if doing business | Complex dual jurisdiction framework | Very High |
| S-Corporation | Pass-through (if eligible) | NOT AVAILABLE - NRAs prohibited | N/A |
Advantages:
• Cleanest structure for foreign owners - corporation is separate taxpayer
• No individual U.S. filing required for passive shareholders
• Capital gains generally not taxed for non-residents on stock sale
• Currently BOI-exempt under March 2025 interim final rule
Disadvantages:
• Double taxation: corporate tax + 30% dividend withholding (absent treaty)
• $800 annual CA minimum franchise tax from first year
• Form 5472 required if 25%+ foreign-owned
Why LLCs Create Problems for Foreign Owners:
• ECI flows through to members requiring Form 1040-NR filing
• Potential quarterly estimated tax obligations
• Partnership withholding (Form 8804) on foreign partners' share
• Form 5472 + pro forma 1120 if disregarded entity owned by foreign person
• Severe penalties ($25,000+) for Form 5472 non-compliance
IRC §1361(b)(1)(C) explicitly prohibits nonresident aliens from being S-corporation shareholders. If you're a foreign founder without U.S. tax residency, C-corporation is your only realistic corporate structure, regardless of what generic incorporation guides suggest.
Federal: 21% flat rate on taxable income (Form 1120)
California: Graduated rates up to 8.84% on income over $1M (Form 100)
Minimum Franchise Tax: $800 annually, due from first year
This layer applies regardless of shareholder nationality.
Default Rate: 30% under IRC §§871(a), 881(a)
Treaty Reduction: Many countries have treaties reducing to 15% or 10%
Required Forms: W-8BEN (individuals) or W-8BEN-E (entities)
Limitation on Benefits: Must satisfy treaty LOB provisions to claim reduced rates
No Treaty Countries: Stuck with full 30% withholding
Non-resident aliens generally NOT taxed on capital gains from U.S. stock sales (IRC §871(a)(2)), provided you're not engaged in U.S. trade or business and don't exceed 183-day U.S. presence. Major exception: USRPHC (real estate holding companies).
Who Must File: U.S. corporations 25%+ foreign-owned
Reportable Transactions: Sales, purchases, services, rents, royalties, loans, capital contributions, distributions
Penalties: $25,000 per form, continuing penalties for each 30-day period after IRS notice
Practical Reality: If you're non-resident owning 25%+, assume Form 5472 is required annually. Work with U.S. tax professional.
Automatically Doing Business: Incorporated in California
Foreign Corps Trigger (RTC §23101):
• Actively engaging in transaction for financial gain in CA, OR
• Exceeding indexed thresholds (2024):
- Sales: ~$637,000
- Property: ~$63,000
- Payroll: ~$63,000
"Transacting intrastate business" (Corp. Code §2105 qualification requirement) is different from "doing business" (RTC §23101 tax nexus). You can trigger one without the other. Foreign corporations must qualify before transacting intrastate business; penalties include loss of right to sue in CA courts.
FinCEN interim final rule temporarily EXEMPTS domestic reporting companies (including CA corporations) from BOI filing. Foreign reporting companies (formed abroad, registered in U.S. state) REMAIN subject to BOI requirements.
Domestic Reporting Company: Entity created by filing with U.S. state (CA corp/LLC)
→ Currently BOI-exempt under IFR
Foreign Reporting Company: Entity formed under foreign law, registered to do business in U.S. state
→ STILL REQUIRED to file BOI unless exempt
Practical Impact: CA subsidiary = no BOI; foreign parent registered in CA = BOI required
Bank CDD requirements (31 CFR §1010.230) remain in effect regardless of CTA exemptions. Even though your CA corporation is BOI-exempt, banks still require beneficial ownership certification identifying 25%+ owners and control person.
Legal Requirements (31 CFR §1020.220):
• Name, DOB, address, identification number
• For non-U.S. persons: passport + foreign address acceptable
Bank Policies (Often Stricter):
• Some require U.S. address for signers (policy, not law)
• In-person visit requirements vary by bank
• Virtual mailbox addresses often rejected
Required Information:
• Each beneficial owner (25%+ equity)
• One control person (significant managerial responsibility)
• Identity verification: passport, foreign address, proof of address
Enhanced Scrutiny for Foreign Owners:
• Source of funds documentation
• Sanctions screening
• Ownership chain documentation (if using foreign holdco)
• Business model clarity requirements
• Work with banks that explicitly support international clients (HSBC, SVB/First Citizens, some credit unions)
• Prepare comprehensive documentation upfront (passport, foreign bank statements, business plan, source of funds documentation)
• Consider remote verification banks rather than workarounds like mail forwarding services
• Expect higher fees and minimum balances for foreign-owned accounts
Ownership ≠ Work Authorization. You can own 100% of your CA corporation from abroad, but you CANNOT work in the United States for that corporation without proper visa/work authorization. USCIS is explicit: non-citizens need authorization to WORK in U.S., and business ownership alone doesn't provide it.
What You CAN Do:
• Own and control the corporation from abroad
• Serve as CEO/director remotely
• Manage all operations outside the U.S.
• Receive dividends subject to withholding
What You CANNOT Do Without Work Authorization:
• Show up in California and start working
• Provide services to the corporation in the U.S.
• Meet with clients/vendors in person in U.S.
• Sign contracts or negotiate deals while physically present
• Any activity construable as employment/self-employment in U.S.
E-2 Treaty Investor:
• Requires treaty country nationality
• Substantial at-risk investment in U.S. business
• Intent to develop and direct enterprise
• Not direct path to green card but renewable indefinitely
L-1A Intracompany Transferee:
• For executives/managers from foreign parent/affiliate
• Requires 1 year employment with foreign company in prior 3 years
• Qualifying relationship between foreign and U.S. entities
• Can lead to green card via EB-1C
These visa categories have specific requirements beyond this business formation guide's scope. Address work authorization as SEPARATE regulatory track from corporate formation. Don't assume owning U.S. corporation provides work rights.
Yes, legally you can use foreign identification (passport, passport number) instead of SSN/ITIN. CIP regulations (31 CFR 1020.220) explicitly allow this for non-U.S. persons. However, individual banks may have stricter internal policies. If rejected, try banks that specifically support international clients (HSBC, SVB/First Citizens, certain credit unions).
No, not if you're doing business in California. FTB doesn't care where you're formed—what matters is whether you're "doing business" under RTC §23101. Delaware corp with CA operations/employees/office/revenue owes CA franchise tax and must qualify as foreign corporation under Corp. Code §2105. Delaware incorporation provides governance advantages (corporate law framework, investor preference) but doesn't reduce CA tax obligations.
Generally no for passive shareholders. C-corp is separate taxpayer; your income limited to dividends (30% withholding) and capital gains on stock sale (generally not taxed for non-residents). BUT if you're also employee earning wages or providing services as contractor, you likely have U.S.-source income requiring Form 1040-NR. If entity is LLC taxed as partnership (not C-corp), pass-through income requires 1040-NR filing regardless of distributions received.
No, not reliably. Banks must verify actual residential address under CDD. Virtual mailbox in U.S. with actual residence abroad creates discrepancy that verification catches (can't provide utility bills/proof of address for virtual mailbox). Some banks explicitly prohibit mail forwarding services. Better approach: work with banks that support foreign addresses and have procedures for verifying foreign residential addresses.
You still owe $800 annual CA franchise tax even with zero revenue. It's annual tax for privilege of being CA corporation, not based on profit/revenue. Owes every year until formal dissolution (Certificate of Dissolution + FTB tax clearance). Many foreign founders face multiple years of unpaid $800 taxes + penalties when they incorporate but don't launch. Solution: dissolve formally if not proceeding with business.
Only if structured as genuine debt with: written promissory note, reasonable interest rate, fixed repayment schedule, actual repayment. "Loan" with no repayment schedule/interest/repayment intent = IRS recharacterizes as constructive dividend → triggers 30% withholding you tried to avoid + penalties for failing to withhold. Thin capitalization (high debt/equity ratio) also risks IRS recharacterization. Shareholder loans can be legitimate tax planning tool when properly structured, but simply calling distribution "loan" won't protect you.
Yes, absolutely. Every CA corporation needs federal EIN from IRS, regardless of operations location or employees. Required for: bank accounts, Form 1120 filing, CA FTB reporting. Apply online (fastest, immediate EIN) or Form SS-4 by mail/fax. Online application has technical issues for foreign applicants; many work with U.S. tax professional or formation service to obtain EIN. EIN is different from ITIN—corporation needs EIN; you as individual generally don't need ITIN unless you have U.S.-source income requiring 1040-NR filing.
If actually operating in CA (customers/employees/location here), incorporating elsewhere doesn't avoid CA obligations. Foreign corps doing business in CA owe CA franchise tax (RTC §23101) and must qualify (Corp. Code §2105). No tax benefit to out-of-state incorporation for CA-based business. Exception: Delaware incorporation for corporate law framework and investor preference—but these are governance/investor reasons, not tax avoidance. If CA-based, incorporate in CA for simplicity unless specific governance/investor reasons for Delaware.
You're stuck with 30% dividend withholding—no way to reduce below 30% for non-treaty countries. Significant disadvantage of C-corp structure for non-treaty founders: 21% federal + CA state tax on corporate income, then 30% withholding on distributions = combined effective rate 45%+ on distributed profits. Only way to defer second layer: retain earnings in corporation rather than distributing, eventually exit via stock sale (generally not subject to U.S. capital gains tax for non-residents not meeting 183-day presence test and not selling USRPHC stock).
No, not if you're non-resident living outside U.S. CA worldwide income tax applies to CA residents (domiciled in CA or present 9+ months annually). Non-resident alien living outside U.S. and not spending significant time in CA = not CA resident for tax purposes. CA can only tax your CA-source income (CA real estate income, CA business income, wages for services in CA). As shareholder of CA corp, dividend income is CA-source subject to CA withholding if non-resident, but CA doesn't tax your non-CA income merely because you own CA corp. CA aggressive residency rules apply to individuals who might be classified as CA residents—not to clear non-residents living/operating outside CA.