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If a company has 2 or 3 board members that one of them isn't a US citizen nor green card holder, is it possible for this company to be considered as a S-Corp in the tax season?

Or at least citizen/green card holder members pay their related taxes as a board member of an S-Corp?

EDIT: For clarity I must say I also meant "shareholders" by "board members". This is a startup company and if they do it with three of them, the shares would be divided like 50% for the non citizen/GC holder guy and 25% each for two others or if they do it with two of them, each will obtain 50%.

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  • You say 'board member', but do you also mean this person is an 'owner'? As well, are they resident in the US for tax purposes? Sep 14, 2021 at 17:49
  • @Grade'Eh'Bacon: In fact they are 2 or 3 graduated guys working on a startup company. One of the guys was an international student who is not a US citizen or green card holder also his country doesn't have a tax treaty with the US. Sep 15, 2021 at 7:32
  • For clarity - are they all shareholders? Sep 15, 2021 at 12:29
  • @Grade'Eh'Bacon: Yes, if they do it with two of them it would be 50-50 and if they do it with three of them it would be 50%(for non citizen guy) and 25% each for the two citizen guys. Sep 16, 2021 at 4:46

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The board composition of a corporation is irrelevant to the eligibility of the corporation to file an S election. As long as the board member is not a shareholder of the corporation, the corporation's eligibility to make an S election isn't impacted.

Note that if the corporation adopts a stock option plan which covers board members, care should be taken with stock option grants to nonresident aliens: while the grant itself probably doesn't affect the S status, the exercise of the option by a nonresident alien option holder certainly will.

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  • Based on clarification posted by the OP, it looks like they did mean 'shareholders', not just 'board members'. Sep 16, 2021 at 13:44

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