Hey all, hoping someone here can point me in the right direction.
I'm a Canadian resident (never lived in the US). In late 2023 I formed a Delaware single-member LLC through a formation service. It was initially set up as a disregarded entity. A while later I filed Form 2553 to elect S-Corp treatment, the IRS appeared to accept it and I believe CP261 was issued.
Since then:
- I've earned under $10,000/year through the LLC (digital services, paid from a US company into a business PayPal)
- This is the only income under the EIN
- I've paid the $300 Delaware franchise tax every year, LLC is in good standing
- I have not filed any US federal tax returns (no 1120-S, no 5472, nothing)
- I have filed my Canadian T1s on time every year, but I need to double-check whether the LLC income was reported on them
I've since learned two things that are worrying me:
- Non-resident aliens (like me) aren't legally allowed to be S-Corp shareholders under IRC §1361(b)(1)(C). So my S-Corp election may be invalid from day one.
- If the LLC defaults back to disregarded entity status, the missing Form 5472 filings carry a $25,000/year penalty for failure to file.
I also understand the late 1120-S penalty is around $235–$255/month per shareholder, capped at 12 months, so potentially another ~$2,800+/year if the S-Corp status is treated as valid.
My questions:
- Is my best path to ask the IRS to void the S-election retroactively (void ab initio) due to ineligible shareholder, then file late 5472s with a reasonable-cause / first-time abatement request? Or is it cleaner to file late 1120-S returns and revoke going forward?
- Has anyone here actually gone through the first-time abatement process for late 5472s as a small foreign-owned LLC? What was the realistic outcome?
- Given I plan to dissolve the LLC (the US structure isn't really serving me as a Canadian), should I clean up the filings first, then dissolve? Or does the order matter?
Appreciate any guidance.
Canadian Penalty Fees for an S Corp (Invalid?) – Help
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