Salary for US citizen working outside the US - W2?
I have an LLC doing business outside the US. It was not formed for tax reasons, but as part of a partnership with some Europeans we've worked with on literacy programs around the world. (There are various backstories on the history of the partnership and its agreements, but I'll skip those details to keep the question simpler.)
Some time after we formed the LLC and made the agreements, a CPA (specializing in cross-border taxation for US citizens) pointed out elements of the tax code I didn't know about. This info was also corroborated by A US Tax attorney focusing on expat taxation. (I did a course the attorney offered that explained details and nuances of the FEIE, FICA, ETBUS status, and related subjects.)
It was pointed out to me that in certain circumstances, a salary paid to a US citizen working outside the US as an employee for a US LLC (taxed as a partnership) does not carry FICA or SE Tax. The IRS source info is:
My current questions are:
1. Am I missing anything.
2. If not, would a W2 still be required? (When the LLC is not ETBUS, the employee qualifies for FEIE, all work is done outside the US, no FICA is due, and no withholding is required.)
For simplicity, for this question, we can assume:
The owners are all passive:
  • 15% Tom - Danish citizen/resident
  • 20% Jack - Dutch citizen/Swedish resident
  • 65% Warner - US citizen who is also usually outside the US and does not actively work on ABC LLC when he visits the US
The employee is:
  • Myra, US citizen working and living outside the US, who is also a Manager of the LLC (but not an owner). She is a part-time employee.
Additionally:
  • ABC LLC is a Wyoming LLC taxed as a partnership, filing a 1065 each year (including K2/K3/8804 as applicable).
  • ABC LLC is not and never has been ETBUS (Engaged in a Trade or Business Inside the United States). It was formed in Missouri, but it has no permanen establishment, nexus, physical presence, contractor, employee, inventory, or equipment in the US. It has no ECTI (unless you count small amounts of interest on money held in US bank accounts).
  • Myra is a US citizen employed by ABC LLC. She is usually outside the US (for the past 7 years) and consistently is eligible for the FEIE.
  • All of the work Myra does for ABC LLC is outside the US, but she is mobile, and there is no PE or fixed physical presence in any country.
  • The work ABC LLC does is 100% services: it focuses on educating others or helping organizations that educate others. Its services include short-term literacy tutoring, plus web development/marketing/administrative services for educational organizations. She has delivered services to clients different countries and has worked from different countries (much of the work being done from a laptop while mobile and having no fixed place of work). She keeps track of other countries' tax laws separately (not part of this question).
  • When Myra makes short visits to the US (for example, to visit family) she does not do any work for ABC LLC. Neither does Warner. The only exception would be rare and brief administrative duties (for example, if Warner happened to be outside the US during tax season and needed to sign the 1065.) My understanding from the tax attorney's course is that small admin tasks don't create an ETBUS situation.
Per my understanding of the IRS rules above, ABC LLC can pay Myra a salary without FICA or SE Tax because less than 2/3 are owned by a US citizen (65% being less than 66.66%), the work is done outside the US, and all the other criteria are met.
I believe I worked out that 941 is not required:
• Per IRS Publication 15, “Wages paid to U.S. citizens and resident aliens employed outside the United States are generally subject to federal income tax withholding unless an exception applies ...”
• If Myra submits a Form W-4 claiming an exemption from withholding (e.g., expecting to qualify for the FEIE under IRC Section 911 and owe no federal income tax), ABC LLC does not need to withhold federal income tax. Per IRS Publication 15, “If the employee provides a valid Form W-4 claiming exemption from withholding, you don’t withhold federal income tax.”
The questions remaining are:
1. Are we missing anything important here?
2. If not, Does ABC LLC need to file a W2 for Myra's salary?
3. If a W2 is needed, how does ABC LLC file this W2 correctly so it does not appear that FICA payments are missing, or create any unnecessary audit triggers?
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2 comments
Ayla May
1
Salary for US citizen working outside the US - W2?
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