Using W-4 as a Nonresident Alien

By ftsig-admin | August 31, 2024

1. Introduction

This article addresses how to use and not use the W-4 as a nonresident alien. Generally, you should avoid filling out the W-4 and only use it under duress.

The correct form to use for withholding instead is the IRS Form W-8BEN or W-8SUB:

  1. About IRS Form W-8BEN, Form #04.202
    https://sedm.org/Forms/04-Tax/2-Withholding/W-8BEN/AboutIRSFormW-8BEN.htm
  2. W-8SUB, Form #04.231
    https://sedm.org/Forms/04-Tax/2-Withholding/W-8SUB.pdf

2. Why private people can’t lawfully submit a W-4 or make an “election” under 26 U.S.C. §3402(p)

26 U.S.C. §3402(p) recognizes that filling it out ONLY as a PUBLIC “employee” constitutes an election to treat your earnings as a “federal payment”, meaning PUBLIC property instead of PRIVATE property. Private people aren’t eligible to submit a W-4 under 26 U.S.C. §3402(p) because:

1. You aren’t a statutory “employee” as we prove in:

PROOF OF FACTS: You’re Not the “Employee” mentioned in 26 U.S.C. 3401(c), FTSIG
https://ftsig.org/proof-of-facts-youre-not-the-employee-mentioned-in-26-u-s-c-3401c/

Filing a W-4 under 26 U.S.C. §3401(p) as a private worker also doesn’t MAKE you a STATUTORY “employee” under 26 U.S.C. §3401(c) either, because what you earn does not fall in the definition of “specified federal payment” that would be eligible for such an election. In fact, doing so is the crime of impersonating a public officer in violation of 18 U.S.C. §912.

2. What you earn except in rare cases does not satisfy the definition of “specified federal payment” in 26 U.S.C. §3402(p)(1)(C). Thus even WITH your consent, you cannot elect to call your private earnings a “payment of wages by an employer to an employee” described in 26 U.S.C. §3402(p)(1)(A). It would be fraud to do so.

Further, submitting a W-4 as a PRIVATE human and making such an UNLAWFUL election to be treated AS a PUBLIC statutory “employee” also doesn’t make the earnings documented on the W-2 into “gross income” either. The definition of “gross income” in 26 U.S.C. §61 DOES NOT include “wages” and the regulation authorizing the “election” ONLY for PUBLIC employees says the “wages” then reported are “INCLUDABLE”, which means they CAN be included in the definition of “gross income” but don’t HAVE to:

26 CFR § 31.3402(p)-1 – Voluntary withholding agreements.

§ 31.3402(p)-1 Voluntary withholding agreements.

(a) Employer-employee agreement.

An employee and his employer may enter into an agreement under section 3402(p)(3)(A) to provide for the withholding of income tax upon payments of amounts described in paragraph (b)(1) of § 31.3401(a)–3, made after December 31, 1970. An agreement may be entered into under this section only with respect to amounts which are includible in the gross income of the employee under section 61, and must be applicable to all such amounts paid by the employer to the employee. The amount to be withheld pursuant to an agreement under section 3402(p)(3)(A) shall be determined under the rules contained in section 3402 and the regulations thereunder. See § 31.3405(c)–1, Q&A–3 concerning agreements to have more than 20-percent Federal income tax withheld from eligible rollover distributions within the meaning of section 402.

We know the above can’t be talking about money for human labor, because there is no profit in the labor under 26 U.S.C. §83, and because slavery is outlawed by the Thirteenth Amendment. So the amounts they are referring to that are “includible” can only include mainly FRINGE benefits not directly related to human labor and described in 26 U.S.C. §3406 Backup Withholding. That subject is dealt with below:

Lawfully Avoiding Backup Withholding under 26 U.S.C. §3406, FTSIG
https://ftsig.org/lawfully-avoiding-backup-withholding/

The only kind of “wages” that would be taxable therefore must involve the human performing the work for someone else as an agent and not for themselves. In fact, if you as a private human not otherwise working for the national government consent to be called a statutory “employee” by illegally filing a W-4 and never indicating duress in the filing of your income tax return. then you volunteered to work for the Secretary of the Treasury in the Department of the Treasury, as we prove in:

How American Nationals Volunteer to Pay Income Tax, Form #05.024
https://sedm.org/Forms/08-PolicyDocs/HowYouVolForIncomeTax.pdf

With the above, they are trying to TRICK you into declaring earnings from your labor as “gross income” and thus DONATE your labor to Uncle Sam for FREE, as we prove in:

PROOF OF FACTS: “IncludIBLE” or “includABLE”?, FTSIG
https://ftsig.org/proof-of-facts-includible-or-includable/

3. Misleading IRS Instructions

The IRS Instructions on how to complete the W-4 are found at:

  1. About Form W-4, Employee’s Withholding Certificate, IRS
    https://www.irs.gov/forms-pubs/about-form-w-4
  2. About Notice 1392, Supplemental Form W-4 Instructions for Nonresident Aliens, IRS
    https://www.irs.gov/forms-pubs/about-notice-1392
  3. FAQs on the W-4, IRS
    https://www.irs.gov/newsroom/faqs-on-the-2020-form-w-4

Unlike U.S. Person filers of the Form W-4, nonresident aliens must:

IRS documentation on nonresident aliens deliberately does not describe the difference between those who are “nationals of the United States” and those who are “alien individuals”. It is our understanding that all the mandatory obligations documented in Notice 1392 for instance only apply to aliens. If they truthfully admitted that the obligations can’t attach to nationals, no one would file the W-4 as an American National. They wouldn’t dare let that happen.

4. “In the United States”

The term “in the United States” is also used in Notice 1392, and it too means INSIDE the United States federal corporation, 28 U.S.C. §3002(15)(A) as an officer, not a private human. See:

  1. Proof of Facts: “INTERNAL” within “IRS” name means inside the government and “taxpayers” work for the Treasury, FTSIG
    https://ftsig.org/proof-of-facts-internal-within-irs-name-means-inside-the-government-and-taxpayers-work-for-the-treasury/
  2. Definitions: “in the United States”, FTSIG
    https://ftsig.org/in-the-united-states/

5. “Personal services”

Notice 1392 says W-4 withholding applies to “dependent personal services”, but they never define what that means. Here is a hint, though:

Am I required to file a U.S. tax return even if I am a nonresident alien?

Yes. Nonresident aliens who perform personal services in the United States are considered to be engaged in a trade or business in the United States and generally are required to file Form 1040-NR (or Form 1040-NR-EZ). Also, you will need to file Form 1040-NR (or Form 1040-NR-EZ) to claim a refund of any overwithheld taxes. See the Instructions for Form 1040-NR, or the Instructions for Form 1040-NR-EZ, for more information

[IRS Notice 1392, p. 2]

Like everything else that is taxable, it means labor rendered in connection in connection with a “trade or business” excise taxable franchise. This is because the W-2 earnings go into the “effectively connected” (trade or business) section of the 1040NR return since they are subject to 26 U.S.C. §162 privileged “trade or business” deductions.

The term “personal service” is nowhere defined in 26 U.S.C. and defined only once in the Treasury Regulations.  Below is the only definition, and note that it is connected with a “trade or business“, which is defined in 26 U.S.C. §7701(a)(26) to include the performance of the functions of a public office.

26 C.F.R. §1.469-9 Rules for certain rental real estate activities.

(b)(4) PERSONAL SERVICES. Personal services means any work performed by an individual in connection with a trade or business. However, personal services do not include any work performed by an individual in the individual’s capacity as an investor as described in section 1.469-5T(f)(2)(ii).

Personal services is work performed as an AGENT or OFFICER of the U.S. Inc. federal corporation defined in 28 U.S.C. §3002(15)(A). In effect, it is services performed as a Kelly Girl for Uncle. As such, it is NOT the earnings of you personally, but your corporate parent. While working as said officer of U.S. Inc., you are WITHIN the LEGAL “United States” but not the statutory geographical United States. The OFFICE you serve in has a domicile in the District of Columbia under Federal Rule of Civil Procedure 17, while the OFFICER does NOT and usually has a foreign domicile within a constitutional state. These distinctions are made clear in:

  1. 26 U.S.C. §6413.
  2. 26 C.F.R. §301.7701(b)-2(c), which establishes the distinction between the “tax home” of an OFFICE v. that of the OFFICER serving in said office.

Nonresident aliens working for a “foreign employer”, meaning a PRIVATE employer, cannot perform “personal services” and thus cannot earn reportable income:

  1. 26 U.S.C. §861(a)(3)(C)(i) says that employees working for nonresident aliens in the United States (U.S. Inc) is not income from sources in the United States. That is because they aren’t working for “U.S. Inc.”. “Domestic” means the corporation not the geography.
  2. 26 U.S.C. §864(b)(1)(A) excludes “personal services” from “trade or business” earnings for a foreign employer for nonresident alien individuals, foreign partnership, or foreign corporation not engaged in trade or business within the United States.
  3. Earnings of nonresident aliens are expressly EXCLUDED rather than EXEMPTED from STATUTORY “wages” as defined in 26 U.S.C. §3401(a) because all services performed outside the STATUTORY “United States**” as defined in 26 U.S.C. §7701(a)(9) and (a)(10) (federal zone) and the CORPORATION “United States” as a legal fiction. Therefore, not subject to “wage” withholding of any kind for such services per:
    3.1. 26 C.F.R. §31.3401(a)(6)-1(b) in the case of income tax.
    3.2. 26 C.F.R. §31.3121(b)-3(c)(1) in the case of Social Security.

6. “wages”

Amounts reported on the W-2 are for “wages”, which are defined in 26 U.S.C. §3401(a):

26 U.S. Code § 3401 – Definitions

(a)Wages

For purposes of this chapter, the term “wages” means all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration (including benefits) paid in any medium other than cash; except that such term shall not include remuneration paid—

The “employee” is defined above in 26 U.S.C. §3401(c) and 5 U.S.C. §2105(a) as an employee of the U.S. government, not a private worker. If you don’t rebut the presumption created by the W-2 that you are working voluntarily as a Kelly Girl public officer, then you are presumed to be such a whore and need to send kickbacks to your pimp in the District of Columbia. That presumption can be rebutted ty:

W-2CC, Form #04.304
https://sedm.org/Forms/04-Tax/3-Reporting/FormW-2CC-Cust/FormW-2CC.pdf

More on “wages” at:

Definitions: “Wages”, FTSIG
https://ftsig.org/wages/

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