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I hired a foreign, independent contractor. All I've heard is to have them fill out a w8-BEN for personal use, and a 1099-MISC to present to the IRS. Are there any other neccessary forms?

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You only fill out a 1099-MISC if the contractor is a single person entity and that person is a US tax resident. Since the person does not appear to be a tax resident, then a 1099-MISC should not be submitted.

A W8-BEN is typically only used when the employee is subject to withholding. This depends on whether there is a tax treaty with the foreigner's country of citizenship. Refer to IRS publication 901 to review the terms of any tax treaties. If there is a tax treaty that exempts that country from withholding, then your contractor should not submit a W8-BEN, but should give you an 8233. You do not submit this to the IRS, you simply keep it as proof that you do not have do withholding.

If the contractor is not exempt from withholding, then you withhold 30% of the payment and fill out a Form 1042 and submit that. It is up to the contractor to make an application to get a refund from that 30% (if any is possible) on their own.

  • My independent contractor lives in Hong Kong. There's the Tax Agreement with the People's Republic of China, but I think Hong Kong is an exception. There's a double tax treaty with Hong Kong and the US, but I can't get a clear answer as to whether they are, or aren't double taxed. Do you happen to know? – Forrest Oct 31 '18 at 20:04
  • @Forrest My understanding is that the US has no treaty with Hong Kong and therefore any contractor from Hong Kong is subject to the 30% income tax. – Five Bagger Oct 31 '18 at 20:35

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