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My wife worked in the US in 2022 as an independent contractor on F1-OPT status. She was recently asked by her client to fill in a W9 form.

The W9 form specifies that it is for US citizens, or US residents for tax purposes.

We have the following scenario:

  1. My wife was a non-resident for tax purposes in 2022, by the substantial presence test.
  2. I was a resident for tax purposes in 2022. We are electing to file jointly for 2022, and treat my wife as a resident.

Because of this election to treat my wife as a resident for tax purposes, should we fill in her W9 form as requested?

Edit: While this seems obvious, it is unclear. The instructions of form W9 state 'If you are a foreign person that has elected to be treated as a US person, do not use form W9. Instead use form W8 or form 8233'.

When examining form W8-BEN it says 'Do not use this form if you are a beneficial owner receiving compensation for personal services performed in the US - instead use form 8233'

Form 8233 is only used for requesting tax treaty benefits, which we are not eligible for. Hence, there is no form that seems to fit our situation.

Thanks in advance for your help!

1 Answer 1

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Because of this election to treat my wife as a resident for tax purposes, should we fill in her W9 form as requested?

Yes. Based on the facts that you've presented she's a tax resident, so why are you even asking?

I'm wondering how someone can be an independent contractor and at the same time certify that they're being trained by their employer, but that's between your wife and the USCIS.

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  • Thank you for your answer. I have updated the question to provide more detail. The situation is less clear cut that my initial description would suggest; the instructions of the forms lead from W9 to W8-BEN to 8233. But 8233 does not seem appropriate to file, as we are not requesting a tax treaty benefit.
    – Sam
    Mar 17, 2023 at 17:10
  • @Sam it's confusing the way they wrote it, but in your case she's not a "foreign person electing to be treated as a US person", she is a US person. The election is for tax treaty purposes (e.g.: tax treaty that allows someone who'd otherwise be considered a foreigner to be considered a resident), that's not your case.
    – littleadv
    Mar 17, 2023 at 17:40
  • Thank you for your reply, which helped me find the following resource: irs.gov/individuals/international-taxpayers/foreign-persons It is stated there that non-resident aliens who elect to be treated as resident aliens are still subject to Chapter 3 withholding. Thus, I believe we should not fill in form W9, which exempts the payee from Chapter 3/4 withholding.
    – Sam
    Mar 17, 2023 at 18:40

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