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 attorneys typically advise people who acquire shares subject to vesting in an early-stage startup to file an 83(b) election with the IRS. Filing an 83(b) election may benefit non-US taxpayers if they ever move to the US and become subject to US taxes. We recommend that you consult your own tax advisor for guidance on whether filing an 83(b) election is appropriate for your circumstances. If you decide to file an 83(b) election, you can find step-by-step instructions in How to File Your 83(b) Election.
Be aware that filing an 83(b) election requires the Taxpayer Identification Number (TIN) of the taxpayer, such as a Social Security Number (SSN) or an Individual Taxpayer Identification Number (ITIN). Most non-US taxpayers don’t have one of these numbers, and because the IRS has not provided guidance on the subject, it’s unclear how someone without a TIN can file an 83(b) election. Some startup attorneys suggest writing “N/A” instead of a TIN. Others suggest applying for an ITIN. However, non-US founders in this situation may not always be eligible for an ITIN. If you are eligible and apply for an ITIN, it’s unlikely you’ll receive it before your 83(b) election filing deadline. To address this, some tax advisors suggest writing “applied for” instead of the ITIN on your 83(b) election form. For more detailed instructions around applying for ITINs, see the IRS website.
We recommend you consult your attorney or tax advisor to answer any additional questions you may have about 83(b) elections for non-US taxpayers.
Managed 83(b) Election Add-On
All Clerky customers using products that involve the issuance of stock subject to vesting have the option to use our managed 83(b) election add-on. With our add-on, you can easily file your 83(b) election through Clerky, and keep track of the evidence as well.