Form W-9 or W-8BEN? The Proper Classification of a Dual Resident Taxpayer for Purposes of Documenting Status with a Foreign Financial Institution Under the Foreign Account Tax Compliance Act¹

By Liliana Menzie² & Steven L. Walker³

I. EXECUTIVE SUMMARY

If a dual resident taxpayer, who determines that he or she is a resident of a treaty partner, is contacted by a foreign bank and asked to provide documentation to confirm the individual’s status as a United States ("U.S.") person or a foreign person pursuant to the Foreign Account Tax Compliance Act ("FATCA"), is such an individual required to provide a (1) Form W-9 (Request for Taxpayer Identification Number and Certification), or (2) Form W-8BEN (Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Individuals)) to the foreign financial institution? There is no guidance on this issue as of yet, and consequently, the purpose of this paper is to request clarification on what is the correct status of an individual in this situation who must certify, under penalty of perjury, his or her status as a U.S. or a non-U.S. person.

The status of the account holder as a U.S. person or a non-U.S. person determines whether the foreign financial institution classifies the account as a U.S. reportable account. Therefore, it is crucial to determine whether the account is deemed held by a U.S. person.