I am French.First time in US. J1,trainee,noncompensatory stipend of 10k during 60 days at nonprofit science institute. Fill W-9 or W-8BEN? Am I resident alien for IRS?

[giuliozoo]

I am a French.

I will spend 2 months at a non profit science institute as a trainee. I will have a J-1 visa. Then I will return to France.

I will receive a 10.000$ stipend, non compensatory as I will not provide any personal service. I will not be an employee of the US institute. The US institute is a scientific non profit organization.

A treaty exists between US and France, and art 21 states that gifts for students and trainee shall not be taxed.

I have been asked to fill a W-9 form or a W-8BEN, it is my choice. 

I have been told I can legally fill a W-9 as I will be considered a resident alien, but I fail to find the reason according to IRS documents.

The question is: can I fill W-9 form or would it be illegal? Which is my status for this stay with respect to IRS? Resident or non resident alien?

Thank you.

[pk]

W-8BEN is usually the form that is filed  by people in your situation

[giuliozoo]

Could you please elaborate on that? I my situation, give a treaty exists, will I be considered as resident or non resident alien with respect to my tax position? Thank you.

[pk]

unless you have been in USA during 2015 and 2016 in addition to the sixty days in 2017 -- you will not satisfy the substantial presence test and therefore would be  Non-Resident Alien  -- you need 183 days  counting all US presence days in 2017 plus 1/3rd the days in 2016 and 1/6th. the days in 2015.

[bine22]

but the first two calendar years on J1 do not count towards the substantial presence test.

[giuliozoo]

From IRS website:

“
In some cases aliens are allowed to make elections which override the Green Card Test and the Substantial Presence Test, as follows:

*They make what is called the "First-Year Choice" (a numerical formula under which an alien may pass the Substantial Presence Test one year earlier than under the normal rules). Refer to the discussion of "First-Year Choice" in Chapter 1 of Publication 519, U.S. Tax Guide for Aliens;
*They elect with their resident alien or U.S. citizen spouse to be treated as a resident;
*They claim a closer connection to a foreign country; or
*They take advantage of the effect of tax treaties for the definition of tax residence.
“

Might this make me a resident alien? In particular with a reference to the tax treaty.

[bine22]

in order to be able to make the first year choice, you need to have days counting as days of presence, which you dont have, if this is your first or second year. If you only stay two months, that election would not be an option anyway.

[giuliozoo]

I have been told that even if all the above conditions stand, the fact that I receive a stipend from a US institution makes me a U.S. person with respect to tax law, instead of a foreign person. Is this accurate?

[bine22]

you are a nonresident alien for the first two calendar yeas on a nonstudent J1 visa. It does not matter, what the source of your income is. For those first two years you would need to file form 1040NR or 1040NR-EZ plus form 8843 (plus a state return, if applicable). Unless you are married to a resident alien/permanent resident/US citiyen, you have no option to be treated as resident alien (unless you violate your visa conditions). Form W8BEN applies to you. Using form W9 does not make you a resident alien and it is the wrong form.