How does a non-US taxpayer make an 83(b) election?
The US Internal Revenue Service (IRS) has not provided explicit guidance on whether a non-US taxpayer may make an 83(b) election. Nevertheless, in most cases, startup lawyers typically advise anyone who acquires startup stock that is subject to vesting to file an 83(b) election with the IRS. Consult your own tax advisor for guidance on what an 83(b) election is and whether it is appropriate for your circumstances.
Because the 83(b) election requires a US taxpayer identification number, it is unclear how an 83(b) election is properly filed by someone with no taxpayer identification number such as a Social Security Number (SSN) or individual taxpayer identification number (ITIN). Some tax advisors suggest writing “applied for” or "N/A" in the section of the 83(b) election form calling for the taxpayer ID. Of course, to avoid making a false statement, you should write "applied for" only if you have applied for a SSN or ITIN when the 83(b) election is filed.
We recommend that someone acquiring startup stock that is subject to vesting consult his or her own tax advisor to determine the steps appropriate for their own circumstances. You may find the following online resources helpful in understanding some of the considerations involved for a non-US taxpayer contemplating the filing of an 83(b) election, though we can't speak to their applicability, validity, or accuracy:
- Section 83(b) Election – Better Safe Than Sorry by Idan Netser, Fenwick & West LLP
- How do you file an election 83(b) form/statement to the IRS for a foreign founder that has no SSN? on Quora