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How do I file an 83(b) election if I do not have a Social Security number?

83(b)EquityTaxNon-US founders

Most practitioners file it anyway. Form 15620 and the regulation both ask for a taxpayer identification number, and the IRS has published nothing on how a person with no Social Security number or ITIN should complete that box. The practice among lawyers is to file the election on time, by mail, with the number box marked to show there is none, usually N/A, or applied for if an ITIN application is under way, and to keep the certified mail receipt exactly as a US founder would. Nobody can promise the IRS will process an election without a number. Not filing gives up the election for certain, and filing costs a stamp.

Why file if you are not a US taxpayer

Because you may become one. A founder who moves to the US, or spends enough days here to be treated as a resident, is taxed as shares issued years earlier vest, at their value on each vesting date, unless an election was made when they were issued. There is no way to make it later, once the shares have started to matter. Investors' counsel will also ask every founder for proof of filing, wherever they live, because the question is asked about the company, not the person.

Getting a number

An ITIN comes from Form W-7 with identity documents, and in most cases the application has to accompany a US tax return, which a founder with no US income may not have. The IRS says to allow about seven weeks, longer in tax season or from overseas. That is longer than 30 days, which is why the election goes first and the number, when it arrives, follows with a copy of the original election. The IRS online form needs an IRS online account, which is built around a US number, so the mail route is the one that works here.

This is an unsettled area. The steps above are what practitioners do, not what the IRS has confirmed. A timely election filed without a number is far better evidence than no election at all.

Written by the lawyers who built Arabella. This is legal information, not legal advice for your situation, and reading it does not make us your lawyers. For a real dispute or a high-stakes decision, talk to a licensed attorney. More questions.