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23 • 2022

Can a Foreigner Be a Shareholder, Officer, or Director of a Corporation?

The Internal Revenue Code provides that an S corporation cannot have a “nonresident alien” as a shareholder.[1] Perhaps because of that tax exclusion we are often asked whether a foreign person can be a shareholder, officer, or director of any corporation, without regard to whether it is an S corporation. Our answer is that we are not aware of any U.S. jurisdiction that limits foreign nationals from serving as shareholders, officers, or directors of a corporation formed in the United States.[2]

Disproving a negative is always a challenge, but looking at representative state corporation laws (California, Delaware, and New York) reveals no such limits. For example, California law provides that only “natural persons” may serve as directors of a corporation,[3] while “natural persons, partnerships, associations or corporations, domestic or foreign, may form a corporation” in California by executing and filing the articles of incorporation.[4] The California Corporations Code defines “person” to “include[] a corporation as well as a natural person”[5] but does not define “natural person,” so there is no indication that a natural person who is a foreign national is excluded from serving as a director or incorporator of a California corporation.[6] There is likewise no language in the General Corporation Law limiting foreigners from being officers or shareholders of a California corporation.[7]

The process is similar in examining other state’s corporation laws. New York specifically places an age limit (eighteen) on individuals to serve as a director of a New York corporation but says nothing about nationality or residence.[8] The New York Business Corporation Law provides information about corporate officers but does not specify any qualifications or prerequisites for holding office.[9]

Like California, Delaware explicitly limits who can serve as a director of a Delaware corporation to natural persons.[10] Other than that, however, the Delaware General Corporation Law does not specify who may be an officer, director, or shareholder of a Delaware corporation.[11]

In sum, in the absence of express language in a particular state’s corporation law precluding a foreign person from being a shareholder, officer, or director of a corporation formed in that state, there is nothing to indicate that such a restriction exists.[12]

[1] See 26 U.S.C. § 1361(b)(1)(C); eMinutes, “The Risk of Having a Foreigner Be a Shareholder of an S Corporation” (Oct. 12, 2015). An individual is a “nonresident alien” if he or she is neither a citizen nor a resident of the United States. See 26 U.S.C. § 7701(b)(1)(B).

[2] Note that foreign ownership of a U.S. corporation may give rise to additional reporting requirements. See, e.g., Internal Revenue Service, Form 5472 (Rev. Dec. 2021) (Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business); Internal Revenue Service, Instructions for Form 5472 (Dec. 2021). That is beyond the scope of this article.

[3] See Cal. Corp. Code § 164.

[4] Id. § 200(a).

[5] Id. § 18.

[6] See, e.g., In re William M.W., 43 Cal. App. 5th 573, 583, 256 Cal. Rptr. 3d 740, 747 (1st Dist. 2019) (the words used in a statute should be given their plain, commonsense meaning); Boy Scouts of Am. Nat’l Found. v. Superior Court, 206 Cal. App. 4th 428, 446, 141 Cal. Rptr. 3d 819, 832 (6th Dist. 2012) (distinguishing between the legal terms “person,” which can include a corporation or other legal entity, and “natural person,” which cannot).

[7] See Cal. Corp. Code §§ 185 (“shareholder” is defined only as “one who is a holder of record of shares”), 312 (dealing with officers of California corporations).

[8] See N.Y. Bus. Corp. Law § 701; cf. id. § 401 (only natural persons aged eighteen years or over may act as incorporators of a New York corporation).

[9] See id. § 715.

[10] See Del. Code Ann. tit. 8, § 141(b).

[11] See, e.g., id. § 142 (dealing with officers).

[12] Cf. In re Fisker Auto. Holdings, Inc. S’holder Litig., No. 13-cv-2100-DBS-SRF, 2018 U.S. Dist. LEXIS 141222, at *31-38 (D. Del. Aug. 21, 2018) (court could exercise personal jurisdiction over foreign national residing in Hong Kong who served as director of Delaware corporation); Namer v. Am. Networks Int’l, Inc., No. 99 Civ. 12120 (MBM), 2000 U.S. Dist. LEXIS 18114 (S.D.N.Y. Dec. 15, 2000) (court could exercise personal jurisdiction over foreign national residing in Israel who was director and largest shareholder of Florida corporation having its principal place of business in New York City).