I get at least 2-3 emails a day asking this question one way or another. I figured I could provide a primer in order to do this.
What would be some reasons a foreign company would want to set up shop in the US?
- Better Taxes – The US currently has a maximum 35% on net income earned in the United States. Even lower on the first $50,000 at 15%
- More exposure – Some companies need to set up shop in the US in order to manufacture product here, sell on Amazon US, use US based services like Stripe, as well as carry their product in US stores. Some video game developers would prefer to have a better tax situation when selling on Steam, or Xbox Live. Regardless, the extra exposure from having a “US based” company will sometimes far outweigh the costs to do it.
- Freedom from VAT tax – In the US, you can set up your company in a sales tax free state, and not pay any VAT or Sales tax on sales of products or services
Before I dive deep into this, I want to point out that this is not an inexpensive process, at minimum it will cost around $1,500 to do with a yearly cost of at least $600-700. And that is the minimum. The main reason for this is the legal help that is necessary to set up some of these items (which is unavoidable) as well as the mandatory yearly tax and franchise filings.
OK, first things first:
1) You need a US C-corporation
The reason you will need a C-corporation rather than an LLC (aka partnership) is a that an LLC is usually treated as a “pass-through” entity. This can cause issues if your company in the US makes net income and is required to pass that through to you as an owner in another country. By doing this the The LLC (aka partnership) makes this whole concept of “tax savings” not applicable because you are eventually going to pay tax on any net income from the US in your country.
With that said, if you live in a country with a tax treaty with the US see here, then you can potentially open an LLC and allow that net income to pass through to you in your country and NOT be double taxed. If you are not looking for the tax savings, and you are in a tax treaty country, then it may actually make sense to set up an LLC rather then a C-corp, though this will be rare.
Delaware used to be the place to set up a C-corp or LLC easily, though with increased fees, I find that MONTANA is the best state to set up a C-corp or LLC. This usually costs ~$500 plus $100 per year for a registered agent and annual filing (Delaware is $800 and $300 per year). This process will get you Bylaws, and EIN (business ID number) and Articles of Incorporation.
2) You need a bank account
This is a difficult one, and can take the most time and money to do. In order to open a business bank account in the US you need:
- a) A registred company, EIN number, and Bylaws that include a corporate resolution
- b) An officer of the company with a Tax ID number (TIN or SSN)*
- c) A US based address
* I want to note, that I have heard of some banks which have locations in the foreign country and in the US to allow you to set up a US based account without needing to get a tax ID number. I do not know these banks.
- a) Setting up your C-corp was accomplished in step 1
- b) Getting a Tax ID number can be difficult. It must be applied for in a W9 application. You must provide identity and a reason for your application. You can find more about that here. This process can take up to 5 months, so proper planning is absolutely necessary. With the help of a professional, this can cost at minimum $800.
- c) A US based address should be easy to get, lots of companies provide mail forwarding services.
- d) Most banks require someone to be “in person” to start the account, unless there is a bank that is also located in your own country (see more below). You will need someone in the US to help. I have not found a bank yet that allows a 100% online opening, and I am pretty sure they don’t exist. You will need to show up with all of your documents, including your passport and a healthy initial deposit. I have worked with a bank that allows this, but there is no guarantee, and I charge a lot to ensure that you are serious about it.
- e) In today’s global economy, opening an account with a foreign bank that has a branch in the US can be easier than ever. Open an account there to establish that you are reliable and they may allow you to open a bank account for US use as well.
3) You need to do all the proper yearly filings as well as the management of the US based finances
This usually requires the help of a professional.
- You must file an annual company report with the state and pay any franchise taxes (cost: Montana it is $20)
- You must pay a registered agent for your company (this cannot be done by me)(cost: $100 per year)
- You must file a federal tax return (cost: $500+)
- You must create company minutes detailing an annual meeting of shareholders(cost: none)
- Annual tax planning – if your company makes income, it may be smart to plan with a professional the tax implications
- Monthly bookkeeping – a professional can help you with this, but it can be done on your own
4) How to treat that money that is transferred
Any money that is transferred from the US to you or your company in your foreign country is either considered a Dividend distribution, or payment for services performed. Both are most likely taxable in your country. If your county is in a tax treaty with the US (see link above), you most likely don’t have to worry about paying tax in the US. If you are NOT in a tax treaty with the US, it may get complicated, hire a professional.
There is is! Hopefully that helps, I will try and periodically update this with better and more detailed information.
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That’s a great question, and there is no easy answer. This may clarify it a little:
As individual taxpayers Romney and Buffet pay so little in taxes because of two sources of income:
- They take qualified dividends from their corporations that they own or are investors in.
- They take Capital Gains distributions from investments they have created
For qualified dividends, between 2001 and 2012 they were taxed at 15% (now its 20%), regardless of what tax bracket you were in. Although it seems like a relatively small amount of tax, before any shareholder is able to receive and pay tax on those dividends, the corporation had to pay a tax on that as well (somewhere in the ballpark of 35-40% usually). This is where double taxation occurs. If the company is a foreign company, lets use the Netherlands as an example, they only charge 3-4% taxes on that income, then it gets distributed to Mr Buffet, and he only pays 15%. Heck of a deal.
For capital gains, the maximum rate from 2001-2012 was 15% (now its 23.8%). For investments in a “small business” (a company that has less than 50 million in assets), sale of any stock provides a tax deduction of 50% of that sale, this means that sale is now only taxed at 7.5%… wow. This is why there are so many venture capital firms.
In addition to this, they can also take advantage of investments made in countries with favorable tax laws. Both store a good chunk of their money in overseas, tax favorable bank accounts and investments. Though a slipperly slope for US tax law, many ultra rich investors have many advisors that make it legal. To explain fully would require a whole other blog post.
So as you can see, using those two methods, Buffet and Romney were able to keep their upper tax limit to around 15%, then using deductions, like donations, property taxes, etc, they dropped their tax rates to around 11-12%.
That is only for their individual rates, below is how they win with their corporations:
Huge corporations use a combination of tactics to keep tax low, but the latest and greatest is setting up shop overseas in a “tax haven” country. For example, Ireland made a deal with apple so that they would only charge 3% in taxes on ALL of their worldwide appstore sales. That’s almost a billion dollars in sales a year that they only pay 3% tax on. In comparison, the US would charge 35%.
The research and development credit allows for a very good option too. An example of the extraordinary benefits of the R&S Credit includes the fact that Boeing reported a $20 billion dollar pre-tax income, yet they received a refund from the government of $110 million. Also the new Domestic Production Activity deduction allows a very large deductions as well, most US based companies can access that.
I’ve researched this stuff a lot, mainly because I want to be in the business of offering these options to small businesses and startups, as well as people who may not be as wealthy as Mitt Romney.
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The JOBS act (Jumpstart Our Business Startups Act) was spearheaded by the Whitehouse in an effort to boost the economy and make it easier for startups to acquire capital for growth. It is slated to become active in January of 2013 (pending the SEC’s final guidelines).
Before the JOBS act, and according to recent studies, startups requesting capital have a high chance of being rejected by VCs. The JOBS act creates a streamlined process to advertise and trade equity for capital from anyone available to do so, including the amateur investor.
The Key aspects of the JOBS act:
- Startups with less the $1 million in revenues qualify and are considered an “emerging growth company”
- Startups can offer equity via a crowdfunding portal up to $1 million dollars, the requirements by the company are gradually increased with a target over$100k. According to the JOBS code, this can be repeated once every 12 months.
- The crowdfunding portal must meet certain minimum disclosure requirements, and educate investors of the risks associated.
- The maximum dollar amount people are able to invest will be limited to 5 percent for individuals with annual income of less than $100,000 and 10 percent for those who make over $100,000. Anyone, regardless of income level, can invest up to $2,000 according to the JOBS code.
What this could mean to Startups:
- A large influx of capital and growth in many different industries
- Easier access to money
- Increased competition by limiting barriers of entry
- The public, and potential customers of the startup get to determine the value of the startup rather than VCs and SEC approved public investors
Issues with the JOBS act
The SEC still has yet to approve their final regulations which are due in January of 2013, and may not have them approved for a long while. For reference, the Dodd-Frank act was supposed to be completed by the SEC on 4/15/2011 and still has not been finalized.
As expected, the regulations are said to include the requirement of full disclosure of company information within the crowdfunding portal. This includes financials, articles, current equity positions, officers and directors, tax returns and descriptions of business and use of funds.
The JOBS code also requires a full review of financials if the start up is seeking between $100k-$500k.
A full audit of financials is required if the startup is seeking over $500k.
For most companies, this may be an issue because Reviews and Audits can be quite pricey. For very small companies, this may be fairly simple, as they may not even have sales or expenses yet, but even then, it requires the signature of a CPA and that still costs a fair amount. Regardless, startups will have to alter their Articles, stock term sheets, investor rights agreement, etc. All of which require a CPA or Attorney to do. I would guess that a start-up company who is seeking $1 million in capital could pay on average $3-10k just to get everything set up.
There are also some regulations for the investors themselves, mainly to protect people from investing their life savings.
Once the target capital is reached within the crowdfunding portal, the investors still have a chance to backout, so if the percentage of equity (or any other reason) was not what they were expecting, they have a chance to say no. This may lead to under-valuation or under-funding.
Any advertising that the startup does for the project must be disclosed, including who is providing the service, how much was paid whether in the past or present.
Regardless of any issues, these changes should inspire some really interesting events in the startup world. All we have to do is wait for the SEC to make their final regulations, which may take a while.
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A question that I get a lot is what I have actually saved companies for providing my three favorite tax incentives.
I will use a mid-sized company as an example. This is a company that makes between 1- 6 million in revenue each year.
Items to be Included: Typical wages and contractor expenses. If the company takes my advice for computer leasing and internal software use. Use of supplies, and segregation of administration duties.
NOTE: (If none of the above makes sense, please let me know, I will write a post on it if enough people want to know).
I can usually save a ~3 million dollar per year (revenue) company:
- $200,000-300,000 in R&D credits (based on wages, patents, trademarks, supplies, etc)
- $9,000-18,000 in Domestic Production Activities
- $200,000 in California Enterprise Zone (other states have enterprise zones too at different rates of course: NY, VA, FL are just a few)
Total: $409,000 in taxes… not too bad. and all of that is carried forward to future years if not used in that particular year.
Contact me if you would like to learn more
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I have been getting this question more and more. Indie video game devs have one thing in mind, and that is making a great game. The last thing they want to think about is financials and taxes. But in this age of Kickstarter and Pre-order sales, they find themselves in a position where they do have to worry a lot earlier then expected.
My advice for Indie Devs:
1. Don’t sweat the entity
Don’t worry about starting an LLC or Corp until you are, or about to make money on your game(s). It is something that can be set up easily and efficiently. Also, many game devs get the wrong entity. For most devs, I highly recommend an S-corp, they are relatively flexible, have common shares (for shareholders and potential investors), and provide a great tax benefit. An LLC can actually act like and S-corp, so dont sweat it if you already set one up, though the cost to legally set up a proper operating agreement may increase. The only time I would recommend setting up an entity right away is if you have partners involved in your project (see more below).
(Advanced: If you have, or plan to have investors, even just family members this may get a little bit complicated. Legally, and technically you need to stipulate this in your bylaws, Org Agreement or articles, if you are eventually going to have a corporation (or LLC).)
2. Keep track of your expenses
Open a separate bank account, they are usually free, it will completely separate your business related expenses to your personal ones. This way, you wont need to save every darn receipt that you get, you can simply refer to the bank statement. Remember, it is important that you track your expenses, every payment that is business related should come from your business account. This can pay off for you in the future if you ever choose to use tax incentives. It is also good practice.
3. A Video Game is your Asset
I should be telling you to protect your game with trademarks, copyrights, patents, guard dogs, etc. But this is complete overkill. You should have a nearly finished product before considering this. Unfortunately, you are an indie game developer, if someone wanted to steal ideas from you, your power to hire a good attorney is limited. On the other hand, and THIS IS IMPORTANT, have people involved sign NDAs and Independent contractor (IC) agreements AND keep your code safe. NDA and IC templates are available for free all over the internet. When you get ready to release your game, and you are confident it will sell, consider a trademark for your game and company name, the extra cost may save you a headache.
4. If you have “partners” get a partnership agreement (or by-laws for an S-corp, Organization agreement for an LLC)
I cant stress this one enough. Just a simple agreement saying who is entitled to what profits at what percentages. As long as it is in writing, there is no argument against it. Establishing a basis in a partnership (or S-corporation) is important as well, this is a value that is due to you if you are kicked out or the partnership (or S-corp) is sold. If you put your own personal money into the business via investment, this increases your basis. By having an agreement in place, it will protect you.
Note: Some states require you to register a partnership (CA is one of them). An LLC with more than one member is automatically classified as a partnership, no additional registration is required.
Regardless if you are good friends or family, it is smart to set this up right away. The cost is worth it. There are a lot of standard partnership agreements (and Operating agreements for LLCs) online, but I would highly recommend you get a professional to help write one as there is always custom information that needs to be put in there.
5. Once the cash is rolling in, get a professional Note:*not all professionals are good
This is the kicker, hire a good CPA. Hopefully one that has experience in the gaming industry. They should know about the Research Credit, any local credits, and the Domestic Production Activity Deduction. If they don’t know about those simple things, then find another. Just those simple tax incentives can save you thousands if your game ever takes off. They should also be able to provide you with strategies that translate to you personally (to better your financial situation far into the future).
Not all professionals are good, there are a lot of them who really just dont care and are only in the business for the money, I know because I run into them everyday. Try your best to spot those types. Ask a lot of questions, because if they really care and they will be truly interested in growing with your company. Find CPAs that give free consultations meet with a few of them, it will pay off for you and your Indie Dev Team.
Best of Luck!!!
Note: This list may expand – I am constantly getting asked this question, and I think of new important issues all the time.
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How can a foreign person, not living in (or near) the united states, start and run a Kickstarter Campaign? Here are the basics of how it can be done:
There are many requirements to start a Kickstarter Campaign. Two big ones are to have a US Entity (LLC or Corp) or Social Security number, a US resident, and a US bank account. These two requirements alone would deter quite a few foreigners from trying, you would need someone you knew and trusted in the US to handle that for you. Even then, that person could face tax consequences for running that bank account for you if it is not properly planned (I will cover this in a later post). This leaves very few options to set one up.
A Difficult Solution:
1. First things first, I had to start a corporation so that the foreigner(s) would be the sole shareholder(s): A Delaware Corp is a great idea, they are cheap, provide excellent legal protection, and have a small Franchise Fee for share holders (Typically $225). I can set these up for $550 with a 48 hour rush ($500 without), highly recommended for time constraints of setting up Amazon Payments. I highly recommend you DONT use any of the silly websites that charge you to set up the corporation, they typically charge a mark-up and sometimes yearly fee, most of them do not allow the rush either.
2. Second, I apply for an EIN number – This one is pretty simple and can be done once the Corporation is in place. If you already have a SS# or ITIN you can get an EIN here
3. Next step is to Get a US resident to be part of your team as a “Creator” or “Developer”. This is the tough part. If you are trying to run a Kickstarter campaign, you need to have one. Amazon Payments needs to confirm that your company name listed on the bank account is associated with your US address. Kickstarter also requires this in their own version of verification. The US helper must be available to use their name for Kickstarter. They must be considered a key “creator” in your team. You, as the foreigner can still hold signer privileges on the bank account, but it may be difficult – see below 4. After you get a helper, you need a US based Checking Account To set up a bank account without my help, you need:
- A tax ID number registered with the IRS. You can get one by filling out and mailing in this form: http://www.irs.gov/pub/irs-pdf/fw7.pdf You will need to provide a physical copy of your passport.
- Once you get that, find a bank that is located in the US, that has a branch in your country. You must be able to go there in person to set up your signature account. Use your ITIN and EIN number to open the account. Your helper in the US may need to provide documentation supporting this information to a local location. You MUST have a US address on the bank statement, but it can be managed online by you as a foreign person.
- Some banks such as wells fargo allow a notarized copy of the application and ID to be sent courier as long as your US helper is involved and in person at the bank when the account is set up. Banking laws require bankers to “know” you, which means you must prove to them that you are real and legitimate.
- I have also heard that some foreign banks, who also have a presence in the US will help you set up a US account without the need for a US helper. I am not sure which banks offer this though.
- You can have a friend or family member that you trust who lives in the USA (with a SSN) open up a checking account and be an authorized signer on the account for your business.
5. After this process, you may ask: Can I get taxed in the USA for Kickstarter Funds? This is a very complex question, and raises a lot of issues. It is not an easy answer because of the ridiculous complexity of foreign tax laws.
Its a difficult process, and with Kickstarter’s tight guidelines, its a risk to do all of that work and find out that your project does not meet those guidelines. Indiegogo, which offer the exact same service allows pretty much anyone to run a campaign.
**This is not meant to be tax advice, and should not be mistaken for it. It is simply analyzing a potential scenario. Your situation is most likely unique and needs a licensed tax professional to look at it.
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And if your CPA says otherwise, fire them. I have seen two articles already where a Kickstarter video game project says they had to pay taxes on their left over money in their first year, this makes me sad, because you can easily avoid that.
NOTE: There has been some confusion on this article where people seem to think I am suggesting you avoid or evade taxes. That is NOT the case at all. These methods used are 100% legal ways to reduce or postpone taxes paid. I want to be very clear: ALL OF THESE METHODS are 100% legal and are in no way avoiding or evading taxes.
In order to eliminate taxes all together there is a simple accounting rule and election of income that you can use, if that fail (which it wont 99% of the time), then there are a few more complex methods that can not only reduce the tax, but can set yourself up to have a tax benefit to carry over to future years, and should probably be used regardless of your situation.
I will start with the first and most simple method:
Accrual accounting is an election that is made on a tax return that allows you to claim income when it is earned, rather than when it is received. This means that every video game company (or many others) out there who get Kickstarter funds would not have to pay taxes on those advanced payments until the game is actually made and distributed to those individuals who pre-purchased it.
Going further, let’s just assume that you have given away items such as T-shirts, artwork, and prizes that you distribute to your backers the first year. You would have to include in income up to cost (or fair market value) of those items on your tax return, because technically you did provide a portion of the service and some of that income was technically “earned”. Therefore, you will be responsible for some of the income earned. What’s important to note, is that you will easily be able to offset that income “earned” with the first year’s expenses or the cost of those items (t-shirts, art, etc.).
Simply electing the accrual accounting system is not enough in itself (which anyone can do including individuals, LLCs, Corps), the IRS still requires a special election to classify the income. If that election is not made, the income falls under the rules set in publication 538 (passage in quotes below) and you do not get any benefit from the accrual election, further, you must use the instructions in pub 538 to properly elect the classification on your tax return in order to make that income an “advanced payment”:
“You report an amount in your gross income on the earliest of the following dates.
- *When you receive payment.
- When the income amount is due to you.
- When you earn the income.
- When title has passed.”
It is important to properly elect to classify this income. I highly recommend a professional handle this for you, as it is easy for someone untrained in taxes to make a mistake with this election. The key to this is to talk to many professionals and ask them if they understand these concepts, as I have seen over and over, most professional do not.
Other Tax Savings Tactics:
Research and Development tax credit
This one I write about all the time, and if you are a video game dev and your accountant has not offered this to you, fire them right now, the benefits are tremendous and could potentially eliminate taxes on income generated from both Kickstarter and sales to the general public. The credit requires some heavy analysis. My firm and many others will not charge until the benefit is used, so it makes complete sense for you to utilize it.
Domestic Production Activity Deduction
This deduction was created in 2004 and was meant to be geared toward the manufacturing industry, then the attorneys over at Electronic Arts successfully lobbied congress and extended it to software and video games. This deduction is 9% of net income, which is an incredible tax break that nearly nobody knows about. For someone that has a net income of $100,000 can easily write off $9,000 as an additional deduction, potentially getting up to $3,000 back in taxes. There are many other requirements to elect this deductions, so again, I advise you to consult a professional with experience utilizing this deduction, not all of them have this skill.
Updated 4/19/2013 with additional information, fleshing out the concepts
Again, this article is only meant as informational, many individuals and companies have unique situations, I recommend you consult a professional before applying any of the above information.
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Aside from the intrinsic value of having local contractors that are easily accessible and speak the same language, there is a value of keeping your contractors that you hire local and in the US.
There are tax incentives in place for keeping production activity in the US, and in some cases may offset the up front savings of looking for contract work overseas.
The R&D tax credit and the domestic production deduction can offset a companies tax liabilty by enough to make it worth it. An example of a small video game developer below:
Over three years of development the video game developer accrues:
- $200,000 domestic wages
- $60,000 contractor 1099 expenses (foreign and/or domestic)
- $10,000 in computer leasing expense
The company releases its video game and earns $500,000
Typically the tax bill would be $175,000 for someone who has no accounting system in place, but lets assume they understand a basic accounting and deduct the expenses based on accrual system. this leaves them with a tax bill of around $70,000.
Assuming the contractors hired were outside the US, and Utilizing the R&D credit and domestic production deduction on all other activities, they are left with a $40,000 tax bill
If the contract work was completed by someone IN the US, the tax bill would be $8,000 less at $32,000.
In this situation, if the company chose to pay contractors within the US, they would have saved $8,000. The bottom line is companies should take this into consideration before thinking about how much they save by hiring overseas.
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This post is more informative if someone reading this actually looking into doing the Research Credit.
We charge on a contingency basis, in fact, a great many firms do this. If you get a refund from the work that we do, then we get paid. Simple as that.
The reason you will rarely find anyone charging an hourly rate for the Research Credit is that the scope of the credit is so considerable, that it could potentially outweigh the actual credits earned. There are certainly cases where we lose money by not properly qualifying a client before going into it.
Also, the job costing for creating hours billed for R&D credit work can be an absolute nightmare, not many companies are willing to do this, it also creates a burden on the company receiving the credit because they need to review the hours before paying.
Some of you might be thinking, what happens if you inflate the total credit numbers, just to get a few more bucks? There is a sort of insurance, or guarantee attached to the service. If the IRS audits you, then we pay back the difference in fees. In this case it makes sense to create a rock solid defense so this never happens.
Many people ask me when I bring up research credits, why their CPA isnt currently doing it for them if, according to me, they would qualify for such a fantastic credit.
There are many reasons that your typical tax filing CPA wouldnt work on the R&D Credit for you. One of the biggest is that they could potentially lose their license (explained below). Below is a list of some of the reasons your tax CPA is not even offering this type of service:
1. It takes a extraordinary amount of time
Your CPA is already spending a lot of time preparing your tax returns, to add an additional 40+ hours to determine if you have even the slightest chance to achieve the Research Tax incentive is not something that they would do. The only time I have seen a CPA firm offer both Tax Prep and Research incentives, is when it is a top 4 firm, that has seperate departments. This of course shows in the hefty price tag.
2. Its a pain in the ***
The R&D Credit is a very difficulty credit, with literally hundreds of lines of tax code to support it. It is highly specialized, and only certain tax firms that have done the work to learn the ins and outs of the credit can offer the service.
3. Your CPA can potentially lose his license
This is the big one. The Research credit is not an easy credit to perform, it takes hours upon hours of substantiation, your typical tax accountant will have to charge for these services. No one in their right mind will pay an hourly charge for something like this, because if they did there would be a potential situation for a huge bill and nearly zero credits used (in the case that the CPA could not find enough credits to offset the fees). There is enough uncertainty that the credit might not heed results to cause this.
So CPA firms typically charge a contingency, if they can find enough credits to use, they will charge you a percentage of what you use. It makes sense to use this business model, you pay for what you use, and it doesn’t come out of your pocket until money goes into it. I have yet to meet a CPA that charges hourly for tax incentive work.
In this case of charging a contingency, if your tax accountant is preparing your returns as well, they face a very large liability of losing their license if they make any mistake on your return. It is very easy for a CPA to deflate an expense in order to inflate the amount of the tax credit used. This in turn will inflate their contingency collected.
This is illegal under the AICPA. An accountant preparing taxes is not allowed to collect a contingency for it. Period.
Simple enough right? Well maybe not, but there is the long explanation of why your Tax CPA will not, and has not done your R&D credit project. This is why many CPAs work with other firms to provide these services.
I work with 10 other firms and provide their clients with this service. It benefits everyone.