Delaware flip advisory for Indian startups

To choose advisors for a Delaware flip from an Indian entity, list the filings first and the firms second. The flip needs a capital gains model, a swap valuation, FEMA reporting through a designated AD bank, the Delaware documents and a US tax analysis. Infinilex counsel qualified in India and the US sign those legs; the SEBI-registered merchant banker and the AD bank stay as the rules name them. Pick Delaware flip advisors who name each signer up front, cover the founders’ own overseas investment, and write the sequence down.

This page is about who does the work. How the swap runs is in the Delaware flip from India, and whether to flip at all is in Delaware vs UAE vs India.

Who you need on a Delaware flip, filing by filing

Schedule A: who handles a Delaware flip, by workstream, sources read 18 and 19 September 2026
Workstream or filing	The rule it answers to	Who signs, certifies or files
Indian capital gains model	An exchange is a transfer under section 2(109) of the Income-tax Act 2025 (formerly 2(47)), charged under section 67(1) (formerly 45); section 70 (formerly 47) lists what is not a transfer	Infinilex’s chartered accountant
Valuation of the Indian shares being swapped	Foreign Investment Master Direction, para 8.4: in a swap of equity instruments, irrespective of amount	SEBI-registered merchant banker, or an investment banker outside India registered with its regulator
Pricing of the Delaware shares the founders receive	OI Rules, rule 16: arm’s length, on an internationally accepted pricing methodology; no class of valuer is named	A valuer acceptable to the designated AD bank under its board-approved policy; no class is prescribed
Form FC-TRS for each shareholder’s transfer; Form FC-GPR for any fresh issue to the parent	FEMA 395/2019-RB, regulation 4: FC-TRS within 60 days of the transfer or of the funds moving, whichever is earlier; FC-GPR within 30 days of issue	Reported through the AD bank; pack prepared by Infinilex’s company secretary or chartered accountant
Form FC for each resident founder, and the UIN for the Delaware parent	OI Directions, para 16(3): Form FC to the AD bank on or before the initial ODI; the UIN is allotted to the foreign entity	The resident founder, through the designated AD bank
Annual Performance Report and FLA return	APR by 31 December each year per foreign entity (OI Regulations, regulation 10(4)); holders under 10% without control and with no other financial commitment are exempt; FLA by 15 July on the FLAIR portal	APR filed by the resident founder, certified by Infinilex’s chartered accountant where statutory audit does not apply; FLA by the Indian company
Structure checks before the swap	OI Rules, rule 19(3) and Schedule III; Government route for land-border investors (Foreign Investment Master Direction, para 3.2)	Infinilex counsel enrolled as an advocate in India, or Infinilex’s company secretary
Indian company’s transfer formalities and stamp duty	Indian Stamp Act 1899 as amended by the Finance Act 2019: 0.015% on a delivery-basis transfer of securities other than debentures, from 1 July 2020	Infinilex’s company secretary
Delaware incorporation and the exchange documents	DGCL section 102(a); sections 131(a) and 132(a) on the registered office and agent	Infinilex’s US-admitted counsel; a Delaware registered agent
US tax analysis of the exchange	26 U.S.C. 351(a) and (d); the 80% control test in section 368(c); section 367 where a US person transfers to a foreign corporation	Infinilex’s US-admitted counsel
Forms 5472 and 5471; BEA Form BE-13	Form 5472 where a 25% foreign-owned US corporation had a reportable transaction with a related party, filed with the income tax return; Form 5471 for certain US persons in certain foreign corporations; BE-13 within 45 days of closing, or a Claim for Exemption below USD 3 million	The company, with its US return preparer; Infinilex’s US-admitted counsel on the analysis
Delaware annual report and franchise tax	Due by 1 March; report fee USD 50; minimum tax USD 175 (Authorized Shares Method) or USD 400 (Assumed Par Value Capital Method)	The company, through its registered agent or CPA
The plan, the sequence and the closing timetable	Every row above, in one order	Infinilex; each row’s signatory as shown

Read 18 September 2026: OI Directions 2022; OI Regulations 2022; Master Direction on Foreign Investment in India, updated up to 15 June 2026; 26 U.S.C. 351, 367, 368(c); IRS, About Form 5471; DGCL section 102; Delaware franchise taxes. Read 19 September 2026: OI Rules 2022; FEMA 395/2019-RB; RBI FLA return FAQ; Income-tax Act 2025; SEBI FAQs on the Indian Stamp Act amendments; DGCL sections 131 and 132; IRS Instructions for Form 5472; BEA Form BE-13 instructions. The last column shows who signs or files: Infinilex counsel qualified in that jurisdiction, or the class of professional a statute names.

What Delaware flip advisory covers

The readiness review and the advisor map. The tax model per class of shareholder, the FEMA position, the IP chain and the cap table, checked before the swap is papered, with a map of who signs what.
FEMA history clean-up. Pricing, FC-GPR filings and FLA returns brought current. Missed founder filings go through the ODI regularisation checklist: the late submission fee is Rs 7,500 for a delayed APR and Rs 7,500 plus 0.025% of the amount involved per year of delay for a delayed Form FC, open for three years from the due date (OI Directions, para 18(2), as at 18 September 2026).
The founders’ own overseas investment position. Schedule III of the OI Rules lists how a resident individual may acquire foreign equity, within the overall ceiling of the Liberalised Remittance Scheme (USD 250,000 per financial year, as at 19 September 2026). The swap it names is a swap of securities on account of a merger, demerger, amalgamation or liquidation, and an individual’s ODI is limited to an operating foreign entity outside financial services with no subsidiary or step-down subsidiary where the individual has control. The OI Directions (para 22) give a foreign entity with a subsidiary as an example of swap-acquired equity that has to be disinvested within six months. A Delaware parent over an Indian subsidiary is therefore tested against Schedule III on each founder’s facts by Infinilex counsel enrolled in India or Infinilex’s chartered accountant before the swap is papered. The filings are on FEMA, ODI and LRS compliance.
The round-trip check and investor screening. Rule 19(3) bars a financial commitment in a foreign entity that invests into India where the result is more than two layers of subsidiaries; see round-tripping and the two-layer rule. Investors from a country sharing a land border with India invest only under the Government route, so every holder is screened first.
Two valuation legs and the tax models. The OI Directions require both legs of a swap to comply with FEMA. The merchant banker values the Indian shares; the founders’ Delaware shares, which are ODI as unlisted foreign equity, are priced at arm’s length. Both valuations, the Indian capital gains model and the US section 351 analysis run from one set of numbers and one closing date. In the classic flip the transferee is a domestic corporation, so section 367(a), which reads on a US person transferring property to a foreign corporation, is an analysis Infinilex’s US-admitted counsel runs where a later restructuring or a reverse flip to India is in view; for US-person holders the question on the flip itself is section 351.
Execution, the rebuild and the calendar. Incorporation, the exchange documents and the FEMA reports in the agreed order; then the option pool (see ESOPs after the flip), contract assignment and US banking; then the annual filings in both countries, with the US side set out in US compliance for a foreign-founded Delaware company.

How to choose Delaware flip advisors: five tests

These five are specific to a flip. The six general questions for any corridor adviser are on cross-border structuring.

Do they separate the two valuation legs? A chartered accountant’s certificate alone does not meet para 8.4 of the Foreign Investment Master Direction.
Is each founder’s ODI position in scope? A scope that covers only the company’s filings leaves Form FC and the annual APR with the founders personally.
Is the US tax signer named? Failure to file Form 5472 carries a USD 25,000 penalty, and a further USD 25,000 for each 30-day period, or part of one, that the failure continues beyond 90 days after IRS notice (IRS instructions, as at 19 September 2026).
Do they start with the history or with the incorporation? Forming the company is the quick part: Delaware’s fee for a one-page certificate of incorporation is USD 109, varying with authorised stock (fee schedule revised 1 August 2026, as at 18 September 2026). The Indian company’s FEMA record decides the timeline.
Does the scope continue past closing? The flip creates annual filings in both countries.

How a Delaware flip advisory engagement is staged

Fixed-scope stages, mapped on a free 30-minute discovery call with the founder.

Readiness review. The checks run and the advisor map drawn. You can stop here knowing whether the flip is ready, what it needs first, and who would sign.
Clean-up. Missed filings, undocumented pricing and IP assignments fixed before the swap.
Execution. Valuations, tax sign-offs, Delaware formation, the exchange and the FEMA reports, to one timetable.
After the flip. The two-country calendar, as a fixed project or on the fractional general counsel retainer.

Timeline and official fees are in Delaware flip cost and timeline. The scope note and the project or retainer choice are on how engagements work.

Who signs what on a Delaware flip

Infinilex is a consultancy. The plan, the sequence, the drafting and the coordination are our work, and Infinilex counsel qualified in India and the US sign those legs: an advocate enrolled in India for the India leg, with Infinilex’s company secretary and chartered accountant where a statute names that professional, and a US-admitted lawyer for the Delaware documents and the US tax position. Statutory signatories stay as the statute names them: each resident founder signs Form FC and the APR, a SEBI-registered merchant banker values the Indian shares, and the designated AD bank reports. Every signer is named on the scope note before they act. Infinilex quarterbacks; Infinilex counsel qualified in that jurisdiction sign.

Frequently asked questions

How do I choose advisors for a Delaware flip from an Indian entity?

Start from the filings, not the firms. A flip needs a capital gains model, a swap valuation, FEMA reporting, the Delaware documents and a section 351 analysis. At Infinilex, counsel qualified in India and the US sign those legs: an advocate enrolled in India together with Infinilex's chartered accountant and company secretary on the India side, and a US-admitted lawyer on the US side. The swap valuation stays with a SEBI-registered merchant banker or registered overseas investment banker, and the FEMA forms go through the designated AD bank, as the rules require. Choose advisors who name each signer before work starts, cover the founders' own overseas investment position, and put the sequence in writing.

Can one firm or consultant do the whole Delaware flip for an Indian startup?

One consultancy can run the whole flip, but no single professional signs all of it. At Infinilex, counsel qualified in India and the US sign those legs: an advocate enrolled in India with Infinilex's chartered accountant and company secretary for the India leg, and a US-admitted lawyer for the Delaware documents and the US tax position. Statutory signatories stay as the statute names them: the swap valuation comes from a SEBI-registered merchant banker or an investment banker registered outside India, the Annual Performance Report is certified by a chartered accountant where no statutory audit applies, and the FEMA forms go through the AD bank. All of it sits under one scope note.

Who values the shares in a Delaware flip, a chartered accountant or a merchant banker?

It depends on the leg. For the swap of the Indian company's equity instruments, the RBI Master Direction on Foreign Investment in India requires, irrespective of amount, a valuation by a Merchant Banker registered with SEBI or an Investment Banker outside India registered with the appropriate authority, so a chartered accountant's certificate alone does not meet the swap rule. For the founders' Delaware shares, the Overseas Investment Rules ask for an arm's length price under an internationally accepted pricing methodology and name no class of valuer. Read on 18 and 19 September 2026.

What should be ready before I brief advisors on a Delaware flip?

Bring four sets of records so each advisor can quote on facts, not guesses: the current cap table with every holder's residency, for Infinilex's company secretary and US-admitted counsel; the Indian company's FEMA file, meaning the pricing behind each issue, the Form FC-GPR filings and the annual FLA returns, for the AD bank; the IP assignments, including from early contractors; and past valuation reports, for Infinilex's chartered accountant and the merchant banker. Gaps in those records are scoped as clean-up work before the swap, and they set the timetable more than the Delaware paperwork does.

Next step

Send us the cap table and the last raise.

Tell us who holds what, when you last issued shares to a non-resident, and when the US investor wants to close. We will tell you what has to be fixed first, who the flip needs, and the order to run it in.

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Delaware flip advisory for Indian startups.