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FAQ

Form W-8BEN, what type of form is this in the US?
A W8 is just a W9 for foreign contractors. It mostly just tells the IRS thatyou don’t owe any taxes because you’re foreign.To start a W2 is what a boss of an employee gives the employee so he can filehis taxes. One copy goes to the IRS and the other goes to the employee. Whenyou get hired you fill out a W4 that tells your employer the informationnecessary to fill out the W2A 1099 is the same thing but for nonemployees who are paid to do things. AW9 is the corresponding“opposite” of a 1099—the equivalent of a W4 forcontractors. That is if you’re a contractor you give your “boss” a W9 thatsays your name and social security number so they have the information to giveyou a 1099 at the beginning of the year so you can do your taxes. Thatbasically goes for any sole proprietor or law firm where more than 600changes hands. So if you pay someone 800 to fix your car you should give himNow you’re question. If you are a contractor and not in the US like aprogrammer in India for a US business you don’t do W9s you do W8s. Yourboss doesn’t give you a 1099 at this point but he does need the W8 on file toprove your status to the IRS so they don’t send cops after you looking fortax money or they don’t ask him to garnish your future wages.There are multiple types of W8s depending on what’s going on. They askwhether the foreign bank account that’s being paid is really controlled by aUS Citizen whether the foreign company is really a subsidiary of a US companywho’s taking all the money whether there are treaties involved between the USand the country where you’re doing the work etc. It’s a mess and thatdefines whether you fill out a W8BEN or a W8BENE or W8ECI. Note BENthere stands for “beneficiary” because again that’s the main question. Of course I am not a lawyer or a CPA but I do consider myself qualified toanswer the question. Nevertheless you may want to consult with someoneofficially qualified before acting on my advice. I write so you canunderstand of course any question “correct” enough to be actionable involveswords and concepts that you probably googled before getting here. We’re allcogs in the machine of mutual edification.
As a Canadian working in the US on a TN-1 visa should I fill out the IRS FormW-8BEN or W9?
Use the W9. The W8BEN is used for cases where you are not working in theU.S. but receiving income relating to a U.S. Corporation Trust orPartnership.
Taxes: If there is a treaty tax between my country and the U.S.A. And I do notclaim it (form W-8BEN), is it perjury?
In the United States we would determine tax requirements for a foreignnational based on US tax statutory requirements. Once we have completed thisprocess we then look to the specific bilateral tax treaty between the foreignnational’s home country and the US. Here we are looking to see if a particulartreaty position will mitigate the particular tax results we have determinedabove.If such a treaty provisions exists we can then apply it though norequirement exists saying the foreign national must take a treaty positioncompared to the tax law which is not optional.I will pran example. Say we have a United Kingdom National receiving adividend from a US company. Tax law requirements prthe US corporationwithhold a 30 tax on payment of the dividend as noted in Section 871a. Ifwe wish we then turn to the US UK Bilateral Tax Treaty allowing for 15withholding rate under Article 10 Paragraph 2b.If the UK National does not use the treaty heshe pays 30 to the US and thenuses this US tax as a credit against hisher UK taxes on the dividend. Theserates vary from 7.5 to 38.Say we are dealing with the highest UK rate. If the UK resident does not usethe treaty position heshe pays 30 in the US and 8 in the UK. If the UKresident uses the treaty heshe pays 15 in the US and 23 in the UK.I have based the above tax analysis on the fact situation at hand if the taxfacts change in any way the tax results may change materially. www.rst.tax
Am I exempt from tax reporting requirements in USA as a non-USA resident doingbusiness on Ecommerce sites like eBay and Amazon by filing form W-8BEN?
As a Resident of Canada you are eligible to use the USCanada income taxtreaty and have your income taxed only in Canada. Article VII is the“business profits” article and can be used for many forms of U.S. sourcedincome including eBay and Amazon.You will receive information from eBay and Amazon about your income from thosesites on form 1099K or if they know what they’re doing you’ll receive a1042S with a Tax Treaty exemption showing on it.
What is US tax form W-8BEN, and what does it authorize? I'm a Swedish overseasfreelancer with a US client, and this is the first time in four years I'vebeen asked to do this.
Sure I can address tax issues here. First all these forms are the endproduct of a highly complex US tax law.The US Treasury holds the company “agent” making the payments responsiblefor withholding tax under Sections 1441 non US persons and Section 1442foreign corporations. Treasury requires a 30 withholding unless the payeeprovides appropriate documentation called a certificate for not withholdingas noted in Treasury Regulation Section 1.14411b1. So the companyrepresents the responsible party here. If the company does not withhold andthey do not have the appropriate documentation or support for not withholdingcalled a withholding certificate and the the payee owes tax Treasury holdsthe company responsible for paying the tax Treasury Regulation Section1.14417b1.However a non US person working physically from a non US location has foreignsource income Section 862a3. And the US does not tax the non US personon foreign source income as not considered effectively connected with a UnitedStates Trade or Business Section 864c4A.So Treasury does not consider foreign source payments as withholdablepayments Treasury Regulation Section 1.14731a1.So Treasury does not require the company making the payment to have the payeecomplete a withholding certificate. However the company may use thedocumentation as means for making sure they are dealing with a non US personactually working physically from a non US location. In today’s digital worldthe company may be uncertain where the person resides. So some companies mayhave a policy for obtaining documentation for all payees.So the W8 BEN provides the payor with the certification for not withholdingas attested by the payee’s signature ‡ the payee has foreign source income notsubject to withholding as noted in Treasury Regulation Section1.1441b4v.A foreign company uses the W8BENE and a non US individual uses the W8BEN.Each form has its own peculiarities.If you look at the bottom portion of the W8BEN you will see you areattesting to the fact you do not have effectively connected income which youdo not based on the primary tax law authority I cited above coming Section864c4A.I have completed the above analysis based on the fact situation. If the factschange the tax results may change. www.rst.tax
How should I fill out Form W-8BEN from Nepal (no tax treaty) for a receiptroyalty of a documentary film?
You are required to complete a Form W8BEN if you are a nonresident alien andearned Royalty income in this case from a USbased source.The purpose of the form is to alert the IRS to the fact you are earning incomefrom the US even though you are not a citizen or a resident of the US. The USis entitled to tax revenues from your USbased earnings and would without theform have no way of knowing about you or your income.To ensure they receive their “fair” share they require the payor to withhold30 of the payment due to you before issuing a check for the remainder toyou. If they don’t withhold anddon’t report the payment to you they may notbe able to deduct the payment as an expense and are subject to penalties forfailing to withhold not to mention forced to pay the 30 amount over andabove what they pay to you. They therefore will not release any paymentwithout receiving the Form W8BEN.Now Nepal happens not to have a tax treaty with the US. If it did and youwere subject to Nepalese taxes on that income you could claim a credit forthe taxes paid to another country up to the entire amount of the tax. Evenstill you are entitled to file a US Form 1040N as the withholding is chargedon the gross proceeds and there may be expenses that can be deducted from thatamount before arriving at the actual tax due. In that way you may be entitledto a refund of some or all of the backup withholding.That is another reason why you file the form it allows you to file a returnin order to apply for a refund.In order to complete the form you can go to the IRS website to read theinstructions or simply go here httpswww.irs.govpubirspdf...
Can a stock photographer in India claim 0% (or lower than 30%) tax withholdingwhile filling form W-8BEN of IRS USA? What legitimate reason can he give forthe same in line 10 of part II?
THIS IS NOT A LEGAL OPINION NO RESPONSIBILITY IS ACCEPTED TOWARDS ANY PARTYFOR PLACING RELIANCE ON IT.As per section 194 J of the Income Tax Act 1961 all foreign payments underhead “Fees for Professional and Technical Services” are taxed at 10 if therecipient have Indian PAN which is most unlikely for Individual and SMEservice providers of various countries and at 20 rate in case Indian PAN isnot available. By an amendment to section 206AA the requirement of PAN in caseof nonresidents and foreign companies has been done away with.Further the Government has entered into Double Taxation Avoidance AgreementsDTAA’s with various Countries including USA which prescribes reduced ratesof tax for residents of the other contracting state 1015 in most cases oreven NIL in some cases for fees for professional and technical services orIndependent Personal Services or other payments also.As per section 90 2 of the Income Tax Act 1961 to whomsoever DTAA isapplicable tax liability shall be the beneficial rate between the Income TaxAct and DTAA. Accordingly in cases of payments to NonResidents to whom theDTAA is applicable if the rate of tax as per DTAA is lower than the Incometax Act the lower rate of taxes should be applicable and if the rate as perDTAA is higher than rate of 10 as prescribed by the Income tax Act 1961 willbe applicable.From a casual look at Form W8 BEN it appears that you can give the referenceof Article 15 of DTAA and section 192J of the I.T.Act 1961. Since the lowerof rates prescribed under DTAA and I.T.Act will be applicable the withholdingtax cannot exceed 10 which is the rate prescribed by the section 194J of theI.T.Act.It is advisable to seek a legal opinion on the subject from an expert who willtake all the facts into consideration before giving an opinion.