If you’re reading this article, you probably have an idea or a technology that you plan to turn into a business. If it’s your first time registering a company in the US it might be confusing and time-consuming. The issue becomes even more challenging if you as the founder of the company are not based in the US and are not a U.S. taxpayer. For the purpose of this article I’m using some of the most asked questions by the founders I worked with to create a step-by-step guide for incorporating a company in the US while you're based in Europe or somewhere else in the world.
What type of legal entity should I pick when incorporating a startup in the U.S.?
When it comes to registering a startup there is one generally accepted rule: startups are incorporated as C-Corporations or C-corps. Do not incorporate an LLC or S Corporation. If you are starting a startup and plan to raise funding from US investors in the US market a C-Corporation is the only commonly accepted legal entity. There are several reasons for this and below are the 3 most important ones:
A C corporation that makes a loss generally carries the loss against future tax years, to offset future profits. A loss made by an LLC is usually used to offset income of the owners during the same tax year—for example, income from employment. Hence the C-corp makes sure that the finances and taxes of the company are not mingled with the founders' personal finances and the taxes.
[TIP BY A VC] Spending time and money on selecting the best legal entity to win the “small and marginal prize” of taxation, when you're aiming to build a $1B+ company is unnecessary and wasteful. There are legal and tax best practices in place that all tech startups follow. Following standard practices will save you time now and eliminate main legal risks for the future.
Where should I incorporate a startup?
The standard accepted state to set up a US based startup is Delaware. There are various tax and legal benefits in doing so, which we will not cover in this article. If you are interested to explore further, you will find helpful resources by googling about the specific tax benefits of the State of Delaware.
What are the best platforms and tools to incorporate a startup in the US from Europe?
The 2 easiest tools for founders outside of the US to register a startup are:
Please note that neither I nor SmartGateVC have any affiliation with the platforms above. We've just seen a lot of founders, both in the US and Europe, use them successfully, and they're very popular.
How much does it cost to register a startup in the US?
Both of the platforms above offer similarly ranged pricing:
Stripe Atlas: $500 one-time fee for incorporation and $100 for each year to be your registered agent,
Clerky: $799 one-time fee for a lifetime subscription.
After you incorporate, you'll also have a small one-time cost to send certified paper mail for your 83(B) election.
How do I incorporate a startup using the Stipe Atlas?
You can use the following link to start the company set up . The referral link does not generate revenue or any benefits for us but will speed up the incorporation process for your company. After you register and verify your account you will be redirected to a page where you will see 11 sections. Below are some of my recommendations for each of these sections:
How do I incorporate a startup using Clerky?
You can use the following link to start the incorporation. This will directly take you to a page to start incorporating a C-corp in Delaware. In Clerky you have 5 sections and these are more or less similar to what you have at Stripe Atlas.
After incorporation is complete the founders will need to sign and finalize bare minimum mandatory documents before they can start company operations:
While there is no hard deadline to finish the process it is strongly recommended to do so promptly for numerous legal reasons which we will not discuss for the sake of keeping the spotlight on the process of incorporation.
What are Common Stock Purchase Agreements?
As we discussed at the beginning of the article you should authorize 10M shares during the incorporation process. We also discussed distribution of the shares between the founders. You can think of issuing common shares and signing the Common Stock Purchase Agreements as the process of actually splitting the stocks. If you used one of the platforms discussed above you probably will end up signing common stock agreements for a total of 8M or 8.5M stocks split between co-founders. The best part of using incorporation platform is that the agreements are automatically generated and sent to you and all the other co-founders to sign with a click of a few buttons.
What are Confidential Information and Invention Assignment Agreements?
The agreement is there to make sure that (1) the founder is bound to confidentiality and (2) the company owns the IP the founder creates. The Confidentiality and IP Agreements will also be automatically generated and sent to each of the cofounders for signature just like common stock purchase agreements.
What is 83(B) election and how to file it?
83(B) election is absolutely critical. Your 83(B) election allows the recipient of stock to pay no taxes as shares vest, and to only pay whenever the shares are finally sold.
By default, vesting is seen by the IRS as income - the company paid you with the stock so you must pay taxes. This is one of the few legal documents that if done incorrectly or late there is no way to go back and fix: More reading.
Note: An 83(B) MUST be completed by each founder within the 30 days of signing the Common Stock Purchase Agreement, so make sure you plan accordingly.
How do I open a company bank account if I am not a U.S. resident or a U.S. taxpayer?
The main challenge of setting up a bank account in the US is having a physical US address for the company.
The most common banks for US startups are:
Mercury and Brex will allow you to set up a company bank account without having a physical US address. You can use virtual offices or registered agent offices. Earth Class Mail and many similar services offer a virtual mailing box and a US address you can use for different business needs.
If you incorporate with Stripe Atlas, it will offer to create your bank account in the first two banks as part of the setup. If you incorporate with Clerky, you'll need to create your bank account on your own.
The founders I worked with used both of those, and they both offer valuable banking solutions to founders outside of the US.
Brex is another option which offers a whole in one banking solution with debit accounts and credit card options and ability to manage the expenses of all co-founders, employees.
Referrals from SmartGateVC get VIP onboarding and an increased sign up bonus! The exclusive sign up bonus for SmartGateVC referrals - you will receive $250 (or 25,000 airmiles), $5K AWS credits and $150K in SaaS discounts after $3K spent on your Brex card. Here is a referral link for your convenience.
For people from Europe or other parts of the world, even the most startup-friendly US banking can feel a bit clunky. For example, as of 2022, sending money can take a few days, and the cards do not support contactless payment. But the banks mentioned above are focused on supporting everything you need as a startup.
Taxes are a big and complex topic, and specific to the jurisdictions where you’re operating.
For setting up your US company, the key thing to know is that your US bank account is a record of your income and expenses, that will be useful for your US tax declarations.
US taxes work differently than taxes in most European countries. In the US, you file your tax declarations, and then you need to store all the receipts of your business expenses as part of your tax returns. These receipts are the only way to prove that business expenses were actually business expenses if there is an audit. A bank transaction, like a credit card or debit card expense, is as good as a paper receipt.
Every year, you will transfer your US bank account transactions to your US accounting software or accountants.
At this point you know everything there is to know about setting up a startup in the US. As the months following incorporation go by you will need further accounting and legal help as your company's administrative challenges become unique and can’t be solved with a standardized platform. You will need a personalized approach. These include:
At that point in the company's journey we always recommend founders to consult lawyers and accountants before taking actions. Doing it yourself can take you only so far. After numerous trial and errors SmartGateVC has been able to filter down and find the best accounting and legal firms who specialize in working with international founders and not only. For further recommendations and referrals feel free to reach out to me over LinkedIn:
Please don't consider the information above legal advice. The recommendations are based solely on my previous experience of incorporating companies and filing documents with international founders.
I hope the article answered your most important question and that you're now in the process of incorporating your company. If you still have some unanswered questions, feel free to reach out to me! You can find me on LinkedIn.
And even if you don't have any specific questions, don't hesitate to connect with me! Drop me a note on LinkedIn and let me know what you think of the article. We at SmartGateVC and Hero House always appreciate feedback.