Using EORs in the US: Tax and Legal implications

Victor Vatus
December 20, 2023
min read

Let's explore the nuances of using Employer of Record (EOR) services in the U.S. for companies incorporated outside the U.S., like in Canada.

Q1: What does an Employer of Record (EOR) do for My U.S.-Based Employees?
A1: An EOR becomes the legal employer for your U.S. employees, managing all payroll, tax withholdings, and compliance with local labor laws. This setup simplifies your accounting processes, as you record payments to the EOR as service expenses, streamlining the complexity of managing payroll abroad.

Q2: Will using an EOR create tax obligations in the U.S. for my company?
A2: Not necessarily. Using an EOR in itself doesn't automatically establish a taxable presence, or "permanent establishment," in the U.S. The crucial factor is the nature and extent of your business activities. If limited to employment, it might not trigger U.S. tax obligations. However, generating significant revenue or operational activities in the U.S. could create a taxable presence. Consulting with a cross-border tax expert is highly recommended.

Q3: Can My U.S.-Based salespeople sign contracts with U.S. clients without my company incurring U.S. taxes?
A3: Generally, yes. However, if these sales activities are a substantial part of your U.S. operations, they might contribute to establishing a permanent establishment, especially if they involve significant decision-making or contract negotiations. The specifics of the U.S.-Canada Tax Treaty come into play here.

Q4: What factors determine if my business activities in the U.S. constitute a permanent establishment?
A4: Several factors are considered, including having a fixed place of business like an office or branch, the nature and scale of your activities, and the duration of your projects in the U.S. In the digital age, significant online engagement with U.S. customers might also be a factor.

Sources: U.S.-Canada Tax Treaty, IRS guidelines on Permanent Establishment, and professional literature on international taxation.

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