YOU NEED A SHAREHOLDERS AGREEMENT FOR YOUR US OR FOREIGN CORPORATION OR LLC

Should there be a shareholders’ agreement in place in addition to a company’s articles of association?

The articles of association are one of the constitutional documents of a company setting out the rules governing the internal affairs of the company. These include, for example, provisions around board meetings, shareholder meetings, directors’ powers and shareholder rights.

In addition to the articles, the shareholders of the company may also choose to enter into a shareholders’ agreement. This is an agreement among the shareholders of the company setting out how the company should be run and the various rights and obligations of the shareholders.

These may sound like fairly similar documents, and they can often overlap. A shareholders’ agreement is not a legal requirement, and companies may choose to rely solely on their articles of association. However, there are a number of benefits to having a separate shareholders’ agreement:

• Shareholder rights are protected. Although the articles of association may provide some protection, having a shareholders’ agreement can provide further clarity and additional provisions on certain matters, both for minority shareholders (e.g. certain decisions requiring unanimous consent, as opposed to a majority decision) and majority shareholders (e.g. drag along provisions whereby majority shareholders can force minority shareholders to sell their shares).
• 
  The agreement can include provisions for dispute resolution, making resolution in the event of a shareholder fall out a more straightforward process.
• The agreement can give shareholders more say in the management of the company. Generally, the directors have the power to manage the day to day activities of the company, however the shareholders’ agreement can set out certain matters that require shareholder approval (often referred to as “reserved matters”).
• In many states, shareholders have limited information rights in respect of the company. However, a shareholders’ agreement can provide for certain company information to be provided to shareholders, such as a copy of each year’s business plan and specific financial information. This is useful for the shareholders to monitor their investment and track the progress of the company.
  
• In order to protect the company in relation to the information rights of shareholders mentioned above, the agreement can include confidentiality provisions. This is key to ensure that any sensitive company information disclosed to shareholders is not shared with third parties. Importantly, this restriction can survive the termination of the shareholders’ agreement. Other restrictions, such as a non-compete clause, may also be included in the agreement.
• Unlike the articles of association, there is no requirement to file a shareholders’ agreement at Companies House (subject to certain exceptions), so the contents of the agreement can remain confidential.

Shareholders’ agreements are commonly seen in joint ventures and investment situations, which involve independent parties coming together to form a commercial arrangement. In these cases the shareholders’ agreement can provide comfort to the shareholders/investors in their new venture by providing for any rights and restrictions as may be necessary. However, shareholders’ agreements can also be useful for other arrangements such as simply setting up a company with more than one shareholder.

If a company determines that a shareholders’ agreement is not necessary, and that the articles of association alone are sufficient, the company should ensure that the articles capture all of the necessary provisions for the management of the company and rights of the shareholders. It is easier to agree all of these things at the outset of any commercial arrangement; quite often shareholders can fall out and reaching agreement at that stage can be more difficult.

We can put together a shareholders agreement for your Corporation or LLC that will protect you as well as the other shareholders.  Email us at: ddnelson@gmail.com. We have over 30 years experience with all aspects of corporate operations and legal matters.

US Expatriate and US Nonresident IRS Tax Payment Methods and How to Pay Over Time, etc.

 The Internal Revenue Service today reminded taxpayers who have a tax bill that there are several ways to make payments, and there are options for many people who can't pay their tax bill in full by April tax deadline.

The deadline to submit 2021 tax returns or an extension to file and pay tax owed this year falls on April 18, instead of April 15, because of the Emancipation Day holiday in the District of Columbia. Taxpayers in Maine or Massachusetts have until April 19, 2022, to file their returns due to the Patriots' Day holiday in those states. Some taxpayers who were victims of a natural disaster have even longer to file their returns.

The IRS reminds people to timely file their tax return and pay whatever they can by the filing deadline to avoid late filing and interest penalties.

Sign in to pay and see payment history
Taxpayers can use their Online Account to securely see important information when preparing to file their tax return or following up on balances or notices. Taxpayers can make a same-day payment for a 2021 tax return balance, an extension to file, or estimated taxes, which are all due by April deadline for most taxpayers. They can also view:

• Their Adjusted Gross Income, Economic Impact Payment amounts and advance Child Tax Credit payment amounts needed for their 2021 return,
• Payment history and any scheduled or pending payments,
• Payment plan details and
• Digital copies of select notices from the IRS.

Ways to pay

• Electronic Funds Withdrawal (EFW): This option allows taxpayers to file and pay electronically from their bank account when using tax preparation software or a tax professional. This option is free and only available when electronically filing a tax return.
• Direct Pay: Direct Pay is free and allows taxpayers to securely pay their federal taxes directly from their checking or savings account without any fees or preregistration. Taxpayers can schedule payments up to 365 days in advance. After submitting a payment through Direct Pay, taxpayers will receive immediate confirmation.
• Electronic Federal Tax Payment System: This free service gives taxpayers a safe and convenient way to pay individual and business taxes by phone or online. To enroll and for more information, taxpayers can call 800-555-4477, or visit eftps.gov.
• Credit card, debit card or digital wallet: Individuals can pay online, by phone or with a mobile device through any of the authorized payment processors. The processor charges a fee. The IRS doesn't receive any fees for these payments. Authorized card processors and phone numbers are available at IRS.gov/payments.
• Cash: For taxpayers who prefer to pay in cash, the IRS offers a way to pay taxes at one of its Cash Processing Companies at participating retail stores. The IRS urges taxpayers choosing this option to start early because it involves a four-step process. Details, including answers to frequently asked questions, are at IRS.gov/paywithcash.

Check or Money Order: Payments made by check or money order should be made payable to the "United States Treasury." To help ensure that the payment gets credited promptly, taxpayers should also enclose a Form 1040-V payment voucher and print on the front of the check or money order: "2021 Form 1040"; name; address; daytime phone number; and Social Security number.

File by April 18, 2022 for most taxpayers
The most important thing everyone with a tax bill should do is file a return by the April 18 due date, for most taxpayers (even if they can't pay in full). Taxpayers may also request a six-month extension to file by October 17, 2022, to avoid penalties and interest for failing to file on time.

Though automatic tax-filing extensions are available to anyone who wants one, these extensions don't change the payment deadline. It is not an extension to pay. Visit IRS.gov/extensions for details.

Usually anyone who owes tax and waits until after that date to file will be charged a late-filing penalty of 5% per month. So, if a tax return is complete, filing it by April 18 is always less costly, even if the full amount due can't be paid on time.

IRS Free File is an easy, quick way to file that is available to eligible individuals and families who earned $73,000 or less in 2021. IRS Free File is available on IRS.gov.

Pay what you can
Interest, plus the late-payment penalty, will apply to any payments made after April 18. Making a payment, even a partial payment, will help limit penalty and interest charges. The fastest and easiest way to pay a personal tax bill is with Direct Pay, available only on IRS.gov. 

The IRS urges taxpayers to first consider other options for payment, including getting a loan to pay the amount due. In many cases, loan costs may be lower than the combination of interest and penalties the IRS must charge under federal law. Normally, the late-payment penalty is one-half-of-one percent (0.5%) per month. The interest rate, adjusted quarterly, is currently 3% per year, compounded daily.

If a loan isn't possible, the IRS can often help.

Online payment plans
Most individual taxpayers qualify to set up an online payment plan with the IRS, and it only takes a few minutes to apply. Applicants are notified immediately if their request is approved. No need to call or write to the IRS. The IRS notes that online payment plans are processed more quickly than requests submitted with electronically-filed tax returns. If a taxpayer just filed their return and knows that they’ll owe a balance, they may be able to set up a payment plan online before they even receive a notice or bill.

There are two main types of online payment plans:

• Short-term payment plan – The payment period is 180 days or less and the total amount owed is less than $100,000 in combined tax, penalties and interest. There's no fee for setting one up, though interest and the late-payment penalty continue to accrue.
• Long-term payment plan – Payments are made monthly, and the amount owed must be less than $50,000 in combined tax, penalties and interest. If the IRS approves a long-term payment plan, also known as an installment agreement, a setup fee normally applies. But low-income taxpayers may qualify to have the fee waived or reimbursed. In addition, for anyone who filed their return on time, the late-payment penalty rate is cut in half while an installment agreement is in effect. This means that the penalty accrues at the rate of one-quarter-of-one percent (0.25%) per month, instead of the usual one-half-of-one percent (0.5%) per month.

Taxpayers who do not qualify for an online payment agreement may still be able to arrange to pay in installments.

Other payment options

Some struggling taxpayers may also consider using these other payment options:

Delayed collection
If the IRS determines a taxpayer is unable to pay, it may delay collection until their financial condition improves. However, the total amount owed will still increase because penalties and interest are charged until paid in full. 

Penalty relief
Some taxpayers qualify to have their late-filing or late-payment penalties reduced or eliminated. This can be done on a case-by-case basis, based on reasonable cause. Alternatively, where a taxpayer has a history of compliance, the IRS can typically provide relief under the First Time Abatement program. Visit IRS.gov/penaltyrelief for details.

Offer in Compromise
Some taxpayers qualify to settle their tax bill for less than the full amount due, through an offer in compromise. Though there is typically a $205 non-refundable application fee, it is generally waived for low-income taxpayers and for offers based on doubt as to liability. The Offer in Compromise Pre-Qualifier tool can help determine eligibility for anyone interested in applying.

The IRS reminds taxpayers that they have rights and protections throughout the collection process.

For more information about payments, see Topic No. 202, Tax Payment Options, on IRS.gov.

If you need help with any of these methods of payment, penalty relief, etc., email us for assistance. We know the rules and how they can benefit you  Kauffman Nelson LLP, CPAs and Attorneys.  ustax@hotmail.com

We have been helping US expatriates and nonresidents for over 25 years.

Taxes You May Not Know About

No tax season would be complete without a list of strange  taxes assessed by various states and countries.

• Sliced bagels: New York charges a bagel-cutting tax at 8 cents per sliced or ready-to-eat bagel.
• Decorative pumpkins: In New Jersey, a painted, varnished, or cut pumpkin sold as a decoration is subject to sales tax. Pumpkins used as food are not.
• Tattoos: Arkansas charges sales tax on tattoos, piercings, and electrolysis.
• Everything delicious: Illinois not only applies a candy tax to confections made without flour, but also in Chicago, soda in a can is taxed at a 3% rate but the syrup for fountain soda is taxed at 9%.
• Breakfast cereal: In Canada, breakfast cereal makers are exempt from tax if the cereal contains a free children’s toy … but only if the toy is not “beer, liquor, or wine.” Seems pretty easy to meet that requirement.
• Robots: South Korea has reduced a tax break for companies that have invested in automation that replaces human jobs with machines.
• Unhealthy food: Mexico, Hungary, and India all have junk food taxes that are in place to try to curb unhealthy eating habits.
• Cow flatulence: Ireland, Denmark, and other EU nations tax cattle owners on cow flatulence, due to it being one of the leading contributors to greenhouse gases.

US Expatriate IRS Forms Which May Cause an Audit Unless Prepared Correctly

 As a US expatriate you generally need to file certain special reporting forms with your US tax return. Filing these forms do increase your chance of audit by the IRS. If your return includes any of the following forms, make certain they are filled out correctly to avoid IRS audits:

Form 2555: Foreign Earned Income Exclusion                           

Form 1116: Foreign Tax Credit

Form 8621: Passive Foreign Investment Company (PFIC)

Form 3520 & 3520a: Foreign Trust Reporting

Form 5471: Shareholder of Foreign Corporation

Form 8938: Statement of Specified Foreign Financial Assets

Our firm has assisted US expatriates with their tax returns and inernational tax issues for over 25 years. If you need help with these forms, advice  or need your entire return prepared by experts contact us by email HERE.  We are US attorneys and CPAs.

IRS TAXPAYER PROCESSING DELAYS CONTINUE AND WILL FOR SOME TIME

Although the IRS is making progress, there are still significant return processing backlogs which among others involve expatriate returns, refunds, etc, such as:

  *   6.5 million unprocessed individual returns, as of November 19, 2021;
  *   2.6 million unprocessed Forms 1040-X, Amended Individual Income Tax Returns, as of November 27, 2021;
  *   3 million unprocessed Forms 941, Employer's Quarterly Federal Tax Return, as of December 1, 2021; and
  *   412,000 unprocessed Forms 941-X, Adjusted Employer's Quarterly Federal Tax Return, as of December 1, 2021.

According to the IRS, it may take 90-120 days to process original returns. The timeline depends on how quickly and accurately taxpayers respond to requests for additional information and "the ability of IRS staff trained and working under social distancing requirements to complete the processing of your return." Taxpayers may access "Where's My Refund" (www.irs.gov/refunds<http://send.spidell.com/link.cfm?r=gZ-80FCd5TTpz7rOj3Jhbw~~&pe=owFbb_7HN6kAMuQv1PPM7nlO7x276rI7f0O_5zRKFTRoJ7RtQ29PUE4Rq48sHYFutsmUucA1mMH1lxeD8zJ7aw~~&t=Y7Wj2mPEcByuqBqXr8dzNA~~>) or use their online account to check on the status of these returns.

The ETA for processing amended returns can be more than 20 weeks (although we have heard of far longer timeframes). The IRS has asked that taxpayers not file a second return or contact the IRS about the status of their returns. Taxpayers are directed to check "Where's My Amended Return" (www.irs.gov/filing/wheres-my-amended-return<http://send.spidell.com/link.cfm?r=gZ-80FCd5TTpz7rOj3Jhbw~~&pe=wcFMsdWlBZD6nCsGBJ4rLKI7hpm_Uj3OaD3kfww63G1kZtILYQCOa86D2-zKiMhDE9LNwYtPmYEuVFWD3Vxvog~~&t=Y7Wj2mPEcByuqBqXr8dzNA~~>) for the "most up to date processing status available" for Form 1040-X, or to check their online account.

For more information on the IRS delays, see:

www.irs.gov/newsroom/irs-operations-during-covid-19-mission-critical-functions-continue<http://send.spidell.com/link.cfm?r=gZ-80FCd5TTpz7rOj3Jhbw~~&pe=WZBS5UrRtXSCNSU76e8B2IscXTDHWo3khIz3q7zBB-vDDIP8InHMzeL4kGWTb-fE82qLt8ecccFVIp1J95Gopw~~&t=Y7Wj2mPEcByuqBqXr8dzNA~~>

New online identity verification process for accessing IRS self-help tools for Expatriates and Nonresidents

The IRS recently launched an improved identity verification and sign-in process that enables more people to securely access and use IRS online tools and applications.

Taxpayers using the new mobile-friendly verification process can access several IRS online services including:

• Child Tax Credit Update Portal
• Online Account
• Get Transcript Online
• Get an Identity Protection PIN
• Online Payment Agreement

Additional applications will transition to the new process over the next year.

The new process reaches more people through the expanded use of identity documents and increased help desk assistance for taxpayers who encounter a problem when attempting to verify their identity online.

The IRS is using ID.me to provide verification services. The new process part of the IRS’s ongoing commitment to ensure that taxpayer information is only provided to the person who has a legal right to the data.

The IRS integrated this new account-creation process into some applications used by tax professionals, including those they use to request powers of attorney or tax information authorizations online using Tax Pro Account or to submit Forms 2848 and 8821 online.

Accessing IRS tools
Taxpayers will be asked to sign in with an ID.me account. If they already have IRS usernames, they can use their credentials from the old system to sign-in until summer 2022. However, they should create an ID.me account as soon as possible. Anyone with an existing ID.me account from the Child Tax Credit Update Portal, or from another government agency, can sign in with their existing credentials.

To verify their identity with ID.me, taxpayers must do two things:

• Provide a photo of a driver's license, state ID or passport.
• Take a selfie using a smartphone or a computer with a webcam.

Once their identity is verified, they can securely access IRS online services.

Taxpayers who need help verifying their identity or submitting a support ticket should visit the ID.me IRS Help Site

Share this tip on social media -- #IRSTaxTip: New online identity verification process for accessing IRS self-help tools. https://go.usa.gov/xedxr

FBAR $10,000 NONWILLFUL FAILURE TO FILE PENALTY IS HELD TO BE $10,000 PER ACCOUNT AND NOT PER FORM

District Court holds (1) FBAR Penalty Statute of Limitations is Waivable and (2) FBAR Nonwillful Penalty is Per Account (11/8/21) In United States v. Solomon, No. 20-82236-CIV-CAN, 2021 U.S. Dist. LEXIS 210602 (S.D. Fla. Oct. 27, 2021), CL here, in a nonwillful FBAR collection suit, the Court held: 1. The FBAR assessment statute of limitations is an affirmative defense that may be waived by the person assessed the penalty (no distinction here between willful and nonwillful).  The FBAR assessment statute of limitations has no provision such as § 6501(c)(4) that requires that extensions by agreement must be made while the otherwise applicable period of limitations for tax assessments is still open; perhaps the implication is that, except for that explicit limitation on waivers by agreement, a taxpayer could waive with an untimely agreement. (In this regard, the Solomon court does conclude that the FBAR statute of limitations is not jurisdictional and thus can be waived.)  Accordingly, the execution of the agreement to extend for the FBAR penalties was a waiver of the statute of limitations that had already expired.  (On the jurisdictional issue, see Keith Fogg, IRS Succeeds in Jurisdictional Argument – With a Twist (Procedurally Taxing Blog 11/4/21), here.) 2.  The nonwillful penalty is per account rather than per form, adopting the Government’s position on this issue.  As the court notes in the following footnote (Slip Op. 10 n. 4): n4 Of the courts that have addressed this issue to date, all but one have rejected the government's view, ruling or otherwise suggesting that a non-willful “violation” of the reporting requirement in 31 U.S.C. § 5314 is the failure to file an annual FBAR report — not the failure to “report” the citizen's interest in each foreign financial account. See United States v. Boyd, 991 F.3d 1077 (9th Cir. 2021) (rejecting government's view); United States v. Bittner, 469 F. Supp. 3d 709 (E.D. Tex. 2020) appeal docketed, No. 20-40612 (5th Cir. Sept. 18, 2020) (same); United States v. Kaufman, 3:18-CV-00787 (KAD), 2021 WL 83478, **8–11 (D. Conn. Jan. 11, 2021) (same); United States v. Giraldi, CV202830SDWLDW, 2021 WL 1016215, *5 n.8 (D.N.J. Mar. 16, 2021) (same). But see United States v. Stromme, No. 20-24800-CIV (S.D. Fla. Jan. 25, 2021) (ECF No. 18 p. 3) (granting judgment in favor of United States for the full amount of penalties sought, agreeing that “each unreported relationship with a foreign financial agency constitutes an FBAR violation”).  If you need help, email us at ddnelson@gmail.com. All consultations are absolutely protected under attorney client privilege.