Foreign Company Alert: Obtaining an EIN may be your Biggest Challenge in the U.S.

Although Dana Shultz has retired as a lawyer, he still obtains EINs for international clients because such activity does not constitute the practice of law.

When a foreign company wants to start up in the U.S., it usually creates a separate corporation here so U.S. obligations and liabilities will not flow back to the overseas parent. The U.S. corporation needs a federal Employer Identification Number (EIN) – at the very least, to open a bank account, even if the corporation will have no employees in the U.S. In a recent post on its website (Responsible Parties and Nominees), the Internal Revenue Service recently made it more difficult for foreign companies to obtain an EIN.

To obtain an EIN, the corporation typically provides the social security number (SSN) of a “principal officer”. In the past, the IRS was rather vague as to what this term meant, stating that it referred to a “president, vice president, or other principal officer”. So, for example, if the corporation’s overseas president did not have an SSN because s/he never worked in the U.S., the corporation could temporarily appoint as vice president an individual who has an SSN, which the corporation then would use to apply for an EIN.

The IRS now states that it “does not authorize” this approach because it facilitates tax non-compliance. Instead, the principal officer must be someone who “controls, manages, or directs the applicant entity and the disposition of its funds and assets”.

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EIN – Update as of July 13, 2023

People occasionally ask how well the IRS is doing relative to its ostensible one-week response time. I haven’t addressed this for a while, so here is the latest report (which is similar to the one I provided two years ago):

• Not having received an EIN for ten days (after faxing the SS-4), I called the IRS.
• Rather than wait on hold for 15-30 minutes, I requested a call-back, which I received precisely at the scheduled time.
• After faxing the SS-4 to the agent and giving him my identifying information, he said that the EIN had been assigned, he gave it to me by telephone, and I emailed it to my client in the U.K.
• A week later, the IRS also provided the EIN to me by fax.

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EIN – Update as of June 22, 2021

Great news: The IRS is back to its standard EIN assignment turnaround time of four business days for faxed SS-4s!

Today I obtained an EIN for an international client for the first time since late last year. I faxed the SS-4 a week and a half ago. Not yet having received an EIN, I called the IRS. Rather than wait on hold, for 15-30 minutes, I requested a call-back. I was told that I would receive a call in 20 minutes, and that is what happened. After faxing the SS-4 to the agent and giving him my identifying information, he said that the EIN had been assigned, and he gave it to me by telephone. I was thrilled! I promptly emailed the EIN to my client in Australia. It’s the beginning of his work day, there, so he probably is as excited as I am!

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EIN – Update as of November 6, 2020

Here is my latest real-world result obtaining an EIN for an international client:

• SS-4 faxed August 25, 2020.
• I called on October 29 (a bit later than the expected 45-business-day turnaround) and obtained the EIN by telephone. (Hints: Call late in the week and late in the day to avoid an overloaded IRS phone system, and use the callback option to avoid an extended period on hold.)
• The IRS finally faxed the EIN (which I already had received by telephone) to me on November 6, i.e., more than 50 business days after I applied for it.

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EIN – Update as of September 10, 2020

Bad news: Today an IRS agent told me that because of the COVID-19 backlog, expected turnaround time for an EIN now is 45 business days!

In other words, the May-through-July experience of my client described below now is the new normal.

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EIN – Update as of May 27, 2020

COVID-19 has paralyzed obtaining EINs for foreign clients for an extended period of time – see details below.

I recently tried to fax a Form SS-4 for a foreign client. That is impossible, because the phone line constantly is “busy”.

So I decided to send the SS-4 to the IRS’s EIN Operation in Cincinnati, Ohio via FedEx. I called the telephone number there to obtain a street address. A voice message stated that the building is closed, which probably means that the fax machines have been turned off, thus the constant busy signal (there is no point accepting faxes that no one will see).

So, I sent the SS-4 via Postal Service certified mail, return receipt requested. Adding several days for delivery to the target one-week turnaround means that that soonest that I reasonably can hope to obtain an EIN is in about two weeks. I intend to update this post once I actually receive the EIN.

After more than two weeks had passed, I tried calling the IRS, and finally, on June 19, I sat through a hold time that was not unbearably long. The IRS agent told me:

• I had not received Postal Service confirmation that the SS-4 was delivered because most IRS mail facilities were not staffed during that period.
• Earlier that week, the IRS had restarted its fax capability.

So, I faxed the SS-4, again, in effect restarting the process after three weeks of nothing happening. With a little luck, my client will have an EIN in another week or so.

And the saga continues:

• June 30 – I received Postal Service confirmation that the mailed SS-4 ostensibly had been delivered on May 26!
• July 1 – After 20 minutes on hold, I got through to an IRS agent. After another 40 minutes, we wrapped up our conversation, because she could not find the SS-4 on their system. She speculated that perhaps it is in a queue behind all of the other EIN requests that built up while the IRS was out of service. In any event, as a precautionary measure, I re-faxed as a “second request”.
• July 17 – I just spoke with someone at the IRS. No EIN, yet, but I believe we now have a target timeframe. The IRS expects to be back to its standard (four-day) turnaround time for submissions received starting on August 1. The implication is that the backlog of submissions received during the COVID-19 shutdown should be gone (i.e., we should have an EIN) by July 31. That now is my target date.
• July 31 – I received the EIN by calling the IRS – ten weeks after initially requesting it! My guess is that also will be faxed to me next week, so I saved a few days by calling.

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EIN – Update as of March 26, 2019

The partial government shutdown earlier this year has taken its toll on obtaining EINs for foreign clients.

I faxed an SS-4 for a client on March 7, stamped as received by the IRS on March 8.

It appears that the IRS began processing it on March 14, within the one-week target turnaround time for EIN assignment. However, I did not receive faxed confirmation of the EIN until today, two-and-a-half weeks after submitting the request! (Fortunately, I called the IRS a week ago to obtain the EIN by telephone, albeit without written confirmation at that time.)

I have no way to predict how long such delays will continue. Unfortunately, I am not optimistic about this problem being resolved anytime soon.

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EIN – Update as of September 16, 2017

The IRS has new fax numbers:

• Principal place of business in one of the 50 states or the District of Columbia – +1 855-641-6935
• No principal place of business in the 50 states or D.C. – +1 855-215-1627 from within the U.S.; +1 304-707-9471 from outside the U.S.

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EIN – Update as of March 19, 2014:

To obtain an EIN quickly and easily online, the corporation’s principal officer must have a US social security number (SSN).

However, if the president is a foreign national, then s/he probably does not have an SSN (or an Individual Taxpayer Identification Number). In this situation, the following process should be followed:

Update: Effective January 6, 2014, the Internal Revenue Service implemented a new cost-saving procedure that, unfortunately, extends the time that I require to obtain an EIN for my international clients by several days (by fax after one week rather than by telephone in real time). The new procedure is reflected below.

1. Retain a lawyer, or another qualified individual, to act as the third party designee for the corporation. See How Much Does It Cost to Obtain an EIN?
2. The designee should prepare Form SS-4 (Application for Employer Identification Number) and Form 8821 (Tax Information Authorization) for the corporation’s president to sign and return.
3. The designee faxes the signed Forms SS-4 and 8821 to the Internal Revenue Service at +1 859-669-5760 (859-669-5987 if the entity applying for the EIN has no principal place of business in the U.S.).
4. Approximately one week later, the IRS faxes an EIN confirmation letter to the designee.

EIN – Update as of October 23, 2014:

• • The principal value (to me) of the 8821 referenced above was that the IRS (supposedly) would send a 147C letter confirming the EIN. However, the vast majority of the time the IRS did not comply with this request. Instead, it just wrote the EIN on the SS-4 and faxed it back to me. So I recently stopped sending the 8821.

• Today, for the first time, when requesting an EIN for a limited liability company (LLC) I received fax stating that I needed to fax back to the IRS the original documents that I sent plus the LLC’s Articles of Organization, because the IRS wants to know the state of formation. While that is relevant information, and the SS-4 requests it for corporations, neither the form nor its instructions requests that information for LLCs!

The IRS never ceases to amaze….

EIN – Update as of December 16, 2014:

Last week, the IRS surprised me, again.

I received a fax back stating that “FOREIGNUS” on Line 7b (see discussion below) is not valid – despite the fact that I had submitted dozens of Forms SS-4 completed that way during the past several years!

I called the IRS to ask what the problem was. The gentleman who answered was friendly, but he was not able to help me. He pointed out that the IRS has thousands of employees, and some of them interpret rules differently. (Great….)

The fax that I received provided a hint, referring to non-resident aliens. So, I changed Line 7b to “NONE – NON-RESIDENT ALIEN”. A few days later, I received an EIN for my client. I since have discovered that “NONE – FOREIGN” also works.

EIN – Update as of September 4, 2015:

Phone numbers to call if the EIN does not arrive within one week:

• If the entity has a principal place of business in the U.S. – 800-829-4933
• If the entity has no principal place of business in the U.S. – 267-941-1099

EIN – Update as of September 10, 2015

Yesterday I learned (a year and a half later!) that the fax-the-SS-4-and-wait-a-week approach is required only for entities having a principal place of business in the U.S. (Unfortunately, the IRS agent who carefully explained the new procedure to me in early 2014 did not make this distinction!)

For entities having a principal place of business outside the U.S., the procedure that I had been using since 2009 (described in the archive below and expanded upon here) still is available:

• • Call 267-941-1099 (preferably not during prime business hours, when one either is kicked off the phone system due to lack of capacity or must wait a long time).

• The agent will request some information; provide a number for faxing the SS-4; review the faxed SS-4 and ask further questions; and provide an EIN at that time by telephone.

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Summary of EIN Procedure as of May 29, 2017

1. Retain a lawyer, or another qualified individual, to act as the third party designee for the corporation. See How Much Does It Cost to Obtain an EIN?
2. The designee should prepare Form SS-4 (Application for Employer Identification Number) for the corporation’s president to sign and return.
3. If the entity has a principal place of business in the U.S., the designee faxes the signed Form SS-4 (with the entity’s formation document certified by the applicable Secretary of State) to the Internal Revenue Service at +1 859-669-5760. Approximately one week later, the IRS faxes an EIN confirmation letter to the designee.
4. Alternatively, if the entity has no principal place of business in the U.S., the designee calls +1 267-941-1099 (preferably not during prime business hours, when one either is kicked off the phone system due to lack of capacity or must wait a long time). The agent will request some information; provide a number for faxing the SS-4; review the faxed SS-4 and ask further questions; and provide an EIN at that time by telephone.

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The following information is out of date and continues to be included in this post solely for archival purposes:

The bottom line: A foreign company looking to start up in the U.S. will need to include, among its officers, at least one who (a) controls, manages, or directs the corporation and the disposition of its funds and assets and (b) has an SSN.

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Update as of December 7, 2009

A tax practitioner in Florida provided the following information:

I work in the tax advisory service line and focus on mostly international tax services. This of course includes helping foreign entities establish US operations, which I see is one of your specialties. I took a minute to browse your blog and saw that you’ve run into the principal officer SSN problem on the EIN application. From my experience, the IRS does not reject the application if an SSN is not included.? We simply enter “FOREIGNUS” on line 7b of the SS-4. The only issue is that the EIN cannot be applied for online because the system rejects anything that is not in a ###-##-#### format.

Another couple of tips for the SS-4 for foreign applicants:

• Enter a US c/o person on line 3
• Use a US address for mailing address and the foreign address for street address
• Call (267) 941-1099 [number updated October 2010] to obtain the EIN directly from an agent and they will give you a fax number so you can fax them the SS-4

The bottom line: Foreign companies whose officers do not have Social Security Numbers should use the telephone, rather than the IRS website, to obtain an EIN. But be prepared for a long wait – when I called to confirm the procedure, I hung up after being on hold for about ten minutes.

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Update as of March 15, 2010

Dealing with the IRS has been much worse than I expected. Repeated problems include:

• Calls that do not go through
• Calls that, once they go through, have sound quality so poor that I must re-dial
• Calls that, once they go through, are on music hold for an extended time
• Fax machines that receive transmissions properly from dedicated fax machines (which I do not have) but not from computers or multifunction (all-in-one) devices (which, of course, I have)

I have wasted hours during the past two working days, yet I still do not have an EIN for one of my clients. Tomorrow I will traipse over to a storefront office-services company to see whether their fax machine can communicate successfully with the IRS.

Now I know, first-hand, why people speak so poorly about the Internal Revenue Service.

Postscript: The fax machine at nearby FedEx Office worked successfully with the IRS equipment.

Post-postscript: I ended up buying a traditional fax machine so I wouldn’t have to leave my office to work with the IRS.

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Update as of December 3, 2013

During the past year or so, in connection with a geographic relocation of responsibility for issuing EINs, the IRS has dramatically improved its level of service.

• Personnel are more friendly and more gracious.
• Wait times appear to have been reduced significantly.
• A new, more-reliable fax capability has been implemented.

Related Posts:

• Am I in Trouble if My Accountant Used His SSN to Get My Corporation?s EIN?
• Help – I Lost My SSN!
• You *Don’t* Need an ITIN to Bring Your Company to the US
• How Much Does It Cost to Obtain an EIN?

Dana H. Shultz, Attorney at Law  +1 510-547-0545  dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.