Employer forces to file W-8BEN

[stridder]

Hello Everybody!

The paying agency forces me to file W-8BEN form, while according to IRS instructions I must file W-9 form.
Its not employer-employee relationship, rather I will receive a fellowship.
I am not really here to discuss which form I should file (its pretty complicated question for my case, but I already verified this with IRS).

I tried discussing this with the paying agency and pointed to several documents in support that I must file W-9 form, however they just keep saying they will not accept W-9 form.
I think filing a wrong tax form basically means that I misrepresent my tax status for IRS.
(especially that I will be filing my taxes for last year as a resident).

Is it even legal for paying agency to force somebody to file a specific tax form?
Isn't it the employee's responsibility to determine his tax status, since its my signature required on these forms?
If yes, could you point me the laws that I could refer to?

What can I do about this situation?
Where can I submit a complaint? with IRS?
I am not in the situation to just look for another employer.
Thank you!

 

[LdiJ]

Hello Everybody!

My employer forces me to file W-8BEN, while according to IRS instructions I must file W-9 form.
I am not really here to discuss which form I should file (its pretty complicated question for my case, but I already verified this with IRS).

I tried discussing this with the employer and pointed to several documents in support that I must file W-9 form, however they just keep saying they will not accept W-9 form.
I think filing a wrong tax form basically means that I misrepresent my tax status for IRS.
(especially that I will be filing my taxes for last year as a resident).

Is it even legal for employer to force employee filing a specific tax form?
Isn't it the employee's responsibility to determine his tax status, since its my signature required on these forms?
If yes, could you point me the laws that I could refer to?

What can I do about this situation?
Where can I submit a complaint? with IRS?
I am not in the situation to just look for another employer.
Thank you!

I assume that the employer is also withholding the 30% required backup withholding for the W-8BEN form? If so, the employer believes that you are subject to backup withholding and therefore that is why they are insisting that you fill out the W-8BEN. You would get that withholding credited towards your taxes when you file your tax return.

 

[stridder]

I assume that the employer is also withholding the 30% required backup withholding for the W-8BEN form? If so, the employer believes that you are subject to backup withholding and therefore that is why they are insisting that you fill out the W-8BEN. You would get that withholding credited towards your taxes when you file your tax return.

I am just starting the job so I don't really know if this is for withholding.
I don't think I am subject to such withholding.
How can I claim that withholding credited back if filing W-8BEN form means that I claim my tax status as non-resident?
If my case is reviewed IRS gonna ask hard questions to me.
It looks like they want to do withholding 'just in case', and don't want to go into any IRS documents.

 

[Zigner]

https://www.irs.gov/forms-pubs/about-form-w-8-ben

Give this form to the withholding agent or payer if you are a foreign person and you are the beneficial owner of an amount subject to withholding. Submit Form W-8 BEN when requested by the withholding agent or payer whether or not you are claiming a reduced rate of, or exemption from, withholding.
(emphasis added)

The W-8BEN isn't generally submitted to the IRS. Keep your valid documentation - any "hard questions" should have easy answers if you do things right.

 

[stridder]

https://www.irs.gov/forms-pubs/about-form-w-8-ben

Give this form to the withholding agent or payer if you are a foreign person and you are the beneficial owner of an amount subject to withholding. Submit Form W-8 BEN when requested by the withholding agent or payer whether or not you are claiming a reduced rate of, or exemption from, withholding.
(emphasis added)

The W-8BEN isn't generally submitted to the IRS. Keep your valid documentation - any "hard questions" should have easy answers if you do things right.

and?
Instructions clearly says I must not use W-8EN, but must submit W-9 instead
Again I'm not here to discuss which form I should submit, but rather what one can do when he/she is forced to submit the wrong form

 

[Zigner]

and?
Instructions clearly says I must not use W-8EN, but must submit W-9 instead
Again I'm not here to discuss which form I should submit, but rather what one can do when he/she is forced to submit the wrong form

What instructions?

"Submit Form W-8 BEN when requested by the withholding agent or payer..." That's what it says on the link I provided.


EDIT:
Why not just send one of each?

EDIT AGAIN: Why are you even being asked for this form if you are an "employee"? Employees don't have to provide either to their employer.

 

[stridder]

What instructions?

"Submit Form W-8 BEN when requested by the withholding agent or payer..." That's what it says on the link I provided.

Instructions on both W-8EN and W-9 form. I am US person in IRS terms.
There are certain cases when one should submit one or the other.

EDIT:
Why not just send one of each?

Because they are for completely different statuses of particular person.
Depending on which one you submit, you are subject to different withholdings, etc.

EDIT AGAIN: Why are you even being asked for this form if you are an "employee"? Employees don't have to provide either to their employer.

Well I don't know this.
Could you please point me to specific law that says employee don't have to provide either?
Whats the purpose of these forms then?

 

[Zigner]

The

Instructions on both W-8EN and W-9 form. I am US person in IRS terms.
There are certain cases when one should submit one or the other.



Because they are for completely different statuses of particular person.
Depending on which one you submit, you are subject to different withholdings, etc.



Well I don't know this.
Could you please point me to specific law that says employee don't have to provide either?
Whats the purpose of these forms then?

The forms are used for independent contractors. If you are an employee, you fill out a W4.

(For those who will point it out, I do realize the form is used for more than just independent contractors, but that's not what's going on here.)

 

[stridder]

The


The forms are used for independent contractors. If you are an employee, you fill out a W4.

(For those who will point it out, I do realize the form is used for more than just independent contractors, but that's not what's going on here.)

Damn, looks like my employer doesn't know anything.
Could you give me a link where I can read about this? (on IRS site if possible)
Will also need it to proof it to my employer

 

[LdiJ]

Damn, looks like my employer doesn't know anything.
Could you give me a link where I can read about this? (on IRS site if possible)
Will also need it to proof it to my employer

No, your employer does know something, your employer is hoping that you will accept being treated as an independent contractor, which is actually cheating you a bit. If your employer properly treats you as an employee, then the employer has to pay half of the Social Security and Medicare taxes, has to provide worker's compensation insurance and unemployment compensation insurance. If the employer treats you as an independent contractor, the employer does not have to pay for any of those things.

Look at form SS-8 and its instructions on the IRS website. That breaks down a lot of information. Also google misclassification of workers as well.

 

[stridder]

No, your employer does know something, your employer is hoping that you will accept being treated as an independent contractor, which is actually cheating you a bit. If your employer properly treats you as an employee, then the employer has to pay half of the Social Security and Medicare taxes, has to provide worker's compensation insurance and unemployment compensation insurance. If the employer treats you as an independent contractor, the employer does not have to pay for any of those things.

Look at form SS-8 and its instructions on the IRS website. That breaks down a lot of information. Also google misclassification of workers as well.

Yep, you right. They are actually too smart.
Looks at their policies and it says that I am NOT an employee.
This is why they want these W forms, so I will have to deal with this crap.

 

[Zigner]

Yep, you right. They are actually too smart.
Looks at their policies and it says that I am NOT an employee.
This is why they want these W forms, so I will have to deal with this crap.

What exactly do you do for this company? Or, if not actually hired on yet, what are you supposed to do?

 

[stridder]

What exactly do you do for this company? Or, if not actually hired on yet, what are you supposed to do?

I prefer not to go to much into details sorry (just in case one of them appear is
reading this)
The document clearly says that I am not an employee though.
Looks like its gonna be a fellowship, not a compensation.

 

[stridder]

So the same questions are still there:
Can they force me to file the wrong form?
That is force me to file W-8EN, when according to IRS instructions I must file W-9?
Do I have to provide any of these forms to paying company?

 

[Zigner]

I prefer not to go to much into details sorry (just in case one of them appear is
reading this)
The document clearly says that I am not an employee though.
Looks like its gonna be a fellowship, not a compensation.

It doesn't matter what they say, it matters what your duties are. You don't have to be specific enough to identify yourself, are you an officer clerk? A shop floor worker? A programmer? Etc.