Formation and founders

Non-US Founders Forming a Delaware C-Corp: EIN, ITIN, Banking, BOI, Form 5472 and Home-Country Tax (Mexico and LatAm Example)

By BlackBox Startup LawLast reviewed: October 20268 min read

Can a non-US founder own a Delaware C-Corp?

Yes. Delaware has no residency or citizenship requirement for incorporators, directors, officers or stockholders. You need a Delaware registered agent. You do not need a US visa to own a company, but owning one does not give you permission to work in the United States; working in person in the US requires appropriate immigration status (for Mexican founders, options such as E-2 treaty investor status or O-1 visas are sometimes relevant).

Step 1: EIN without a Social Security number

The IRS online EIN application requires the responsible party to have an SSN or ITIN. Without one:

1. Complete Form SS-4. In the field for the responsible party's SSN, ITIN or EIN, write "Foreign" or "N/A" as the IRS instructions allow.
2. Send it by fax to the IRS international fax number in the current instructions, or by mail. International applicants can also call the IRS international EIN line.
3. Expect days to several weeks. Keep the EIN confirmation letter (CP 575 or 147C); banks ask for it.

Step 2: Do you need an ITIN?

An ITIN (obtained with Form W-7) is needed only when you have a US tax filing requirement or a treaty benefit to claim, for example a personal US tax return because you have US-source income. It is not needed to form the company, get an EIN, open most bank accounts or file an 83(b) election. ITIN applications require original or certified identity documents, and some founders report rejections when instructions were followed loosely; use an IRS acceptance agent if you do need one.

Step 3: Banking

Fintech banks popular with startups accept many non-US founders but have tightened rules: in March 2026, founders reported that Mercury would close accounts for businesses with addresses in certain countries from May 2026. Prepare:

• Certificate of incorporation, EIN letter, bylaws or board consent authorizing the account.
• Passport, proof of home address, description of the business, website, expected transactions.
• A US business address (registered agent addresses are often not accepted as the business address).

Have a backup option (another fintech or a traditional bank that can open accounts remotely or during a US visit) and avoid commingling personal and company funds.

Step 4: Federal tax filings

• Form 1120 (corporate income tax return) every year, even with no income.
• Form 5472 if one foreign person owns directly or indirectly 25% or more of the company and there were "reportable transactions" with related parties (capital contributions, loans from founders, payments to a founder's foreign company). The $25,000 penalty applies per form and is assessed strictly.
• Withholding on payments to foreign persons: if the company pays foreign contractors or founders, collect Form W-8BEN or W-8BEN-E and determine whether US withholding applies (services performed outside the US are generally foreign-source and not subject to US withholding).
• State filings where the company has nexus, plus the Delaware franchise tax by March 1. See Delaware franchise tax.

Step 5: 83(b) and founder stock

Non-US founders whose stock vests should still consider filing an 83(b) election, usually on paper by certified mail, stating that they do not have a US taxpayer identification number. It protects them if they later become US taxpayers and satisfies investors' diligence. See the 83(b) guide.

Step 6: BOI reporting

Under FinCEN's March 2025 interim final rule, companies created in the United States are exempt from beneficial ownership information reporting under the Corporate Transparency Act, even if their owners are foreign. A foreign company registered to do business in a US state remains in scope. Keep an internal record of owners anyway: banks will ask.

Home-country tax: the Mexico example

US rules are only half the picture. A Mexican-resident founder of a Delaware company should review at least these points with Mexican tax counsel:

Corporate residence and permanent establishment

Under the Mexican Income Tax Law, a legal entity is resident in Mexico if its principal place of management or effective management is in Mexico. A Delaware company whose directors and management all operate from Mexico could be argued to be Mexican resident, and in any case may have a permanent establishment in Mexico. The US-Mexico treaty does not provide an automatic tie-breaker that resolves dual residence for companies in the taxpayer's favor. Structures commonly used: a Delaware parent with a Mexican operating subsidiary that employs the team and is paid on arm's-length terms (transfer pricing), and board decisions documented as taken where the board actually meets.

REFIPRE (Mexican controlled foreign company rules)

Mexican residents who control or hold interests in foreign entities whose income is taxed at less than 75% of the Mexican tax that would apply (30% corporate rate, so an effective rate below 22.5%) may have to recognize that income currently in Mexico, unless an exception applies. A Delaware corporation paying 21% US federal tax and little or no state tax can fall below the threshold. Active business income is often excepted when passive income is a small share of the total, but the analysis must be done and informative returns may be required. For transparent entities such as a single-member LLC, income may flow directly to the Mexican owner.

Dividends and exits

• Dividends from the US company to a Mexican individual are subject to US withholding (generally reduced to 10% under the treaty) and taxable in Mexico, with a foreign tax credit.
• Sale of shares: a non-resident alien's gain on selling shares of a US C-Corp is generally not subject to US tax (unless the company is a US real property holding corporation or the founder is present in the US 183 days or more). The gain is generally taxable in Mexico for a Mexican resident. QSBS does not help a non-US taxpayer in that case.
• Receiving shares for services below value can create taxable income in Mexico even if the US treats it differently.

Other Latin American countries (Brazil, Colombia, Chile, Argentina) have their own CFC regimes, residence rules and exit taxes; the same checklist applies.

The "Delaware flip" for existing LatAm companies

If you already run a Mexican S.A.P.I. or another local company and US investors ask for a Delaware parent, the usual path is a "flip": founders contribute their local shares to the new Delaware company in exchange for its stock. The flip can trigger local tax on the contribution, needs local corporate approvals and should be planned before a term sheet sets a deadline.

Written and reviewed by BlackBox Startup Law, a cross-border startup and venture law firm (United States, Mexico, Latin America and Spain). Last reviewed: October 2026. This page is general information, not legal or tax advice for your situation.