Using Form W-4 as a Nonresident Alien

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

Another article closely related to this subject:

The consequences of filling out a W-4 for those not ALREADY working for the government, FTSIG
https://ftsig.org/the-consequences-of-filling-out-a-w-4-for-those-not-already-working-for-the-government/

2. Why those who wish to remain private 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” 26 U.S.C. §3401(c) 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 TO YOU in YOUR OWN 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 a PUBLIC 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. How otherwise PRIVATE companies become CIVIL PUBLIC “Employers” Subject to IRS Enforcement and Withholding

We know that private sector companies are, by default, legislatively foreign in relation to the national government. They surrender their private and foreign status through the following process:

1. An “employer^PUB” is defined in 26 U.S.C. §3401(d) as anyone with “employees”. Thus, being an “employer^PUB” has YOUR ELECTION to become an “employee” as a dependency.
2. If you submit a W-4 identifying yourself as an “employee” and they accept it, you then CONVERT them from an employer^PRIV to an “employer^PUB” under 26 U.S.C. §3401(d).
3. The company also becomes an “employer^PUB” by completing the SS-4 identifying themselves as an “employer” under 26 U.S.C. §3401(d). They should check “Other” and “For banking purposes only” on the Form SS-4 to avoid the “employer” civil status.

By the above mechanisms, if you don’t submit a W-4 or W-4 Exempt and instead withdraw your “employee^PUB” and W-4 election under 26 U.S.C. §3402(p)(1) and 26 C.F.R. §31.3402(p)-1(b)(2), you cease to be an “employee” and they cease to be an “employer” in relation to you. Thus, the company you work for also retains their PRIVATE status in relation to you.

You should NEVER let your business associates force you to submit a W-4 Exempt, because then you still retain the “employee” voluntary status. Instead, insist on withdrawing the agreement under 26 U.S.C. §3402(p)(1) and 26 C.F.R. §31.3402(p)-1(b)(2). If you don’t heed this admonition, you are actually violating 26 U.S.C. §3121(b) because you don’t fall into any of the categories where “EXEMPT” status is permitted. If you then don’t pay taxes on the earnings subsequently reported on the W-2, IRS will eventually send the company a “lock in letter” mandating withholding, which they can do with “employees” because you identified yourself as an “employee” by filing the W-4 Exempt.

26 U.S.C. §3121(b) defines what payments are subject to withholding and the exemptions thereof. The term “within the United States” there means WITHIN THE CORPORATION, not within the geography. As long as your activities are connected with a public office called “employee”, which the code calls “trade or business”, and offices are property of the national government serving within the corporation, then YOU are representing the corporation and the VOLUNTEER services you perform as said representative are called “personal services”. See:

Microsoft Copilot: Meaning of civil statutory “services”, FTSIG
https://ftsig.org/microsoft-copilot-meaning-of-civil-statutory-services/

If you don’t VOLUNTEER as a private human to the civil statutory “employee” status, you aren’t WITHIN the corporation and legal fiction and retain your private and foreign status and earn no CIVIL/PUBLIC/DOMESTIC “wages” that can be reported or targeted for withholding or levies.

26 C.F.R. §31.3121(d)-2 Who are employers

(c) Although a person may be an employer under this section, services performed in his employ may be of such a nature, or performed under such circumstances, as not to constitute employment (see §31.3121(b)–3).

4. Applicability to American nationals (nationals of the United States) in the states

The case of Mayo Found. for Med. Educ. & Res. v. US, 562 U.S. 44 (2011) describes the applicability of payroll withholding. Notice CJ Robert’s calls it a “national system”—not a federal system.

Through the Social Security Act and related legislation, Congress has created a comprehensive national insurance system that provides benefits for retired workers, disabled workers, unemployed workers, and their families. See United States v. Lee, 455 U.S. 252, 254, 258, and nn. 1, 7, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982). Congress funds Social Security by taxing both employers and employees under FICA on the wages employees earn. See 26 U.S.C. § 3101(a) (tax on employees); § 3111(a) (tax on employers). Congress has defined “wages” broadly, to encompass “all remuneration for employment.” § 3121(a) (2006 ed. and Supp. III). The term “employment” has a similarly broad reach, extending to “any service, of whatever nature, performed … by an employee for the person employing him.” § 3121(b).

[Mayo Found. for Med. Educ. & Res. v. US, 562 U.S. 44, 131 U.S. 704, 709 (2011); SOURCE: https://scholar.google.com/scholar_case?case=13697118873385979168]

We know the territories and possessions are embraced by the definition of “State” in the Social Security act at 42 U.S.C. §1301, so this is an admission of what “national system” means: Areas within the exclusive jurisdiction of Congress.

What this tells us, is that you could be a U.S. citizen (nationally preempted) under the SSA for SS purposes, but a NRA for tax purposes. And understanding that paragraph in Mayo is critical to being able to ultimately stop withholding. Since it’s a “national system”, Puerto Ricans (Described in 26 U.S.C. §2209 as “nonresidents, not a citizen of the United States”) would mark “U.S. citizen” on Form SS-5. Yet, we know they are nonresident aliens under Title 26.

This case also reminds us that Social Security is not authorized to be offered extraterritorially within states of the Union, and thus, there must be a way OTHER than submitting a W-4 Exempt to stop withholding. The regulations in fact DO recognize the ability to do this in 26 C.F.R. §31.3402(p)-1(b)(2):

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

(b) Form and duration of employer-employee agreement.

(2) An agreement under section 3402(p)(3)(A) shall be effective for such period as the employer and employee mutually agree upon. However, either the employer or the employee may terminate the agreement prior to the end of such period by furnishing a signed written notice to the other. Unless the employer and employee agree to an earlier termination date, the notice shall be effective with respect to the first payment of an amount in respect of which the agreement is in effect which is made on or after the first “status determination date” (January 1, May 1, July 1, and October 1 of each year) that occurs at least 30 days after the date on which the notice is furnished. If the employee executes a new Form W-4, the request upon which an agreement under section 3402(p)(3)(A) is based shall be attached to, and constitute a part of, such new Form W-4.

Notice the following facts about the above:

1. The W-4 does NOT truthfully identify itself as an “agreement”. If they identified it as such, they would have to admit that W-4 withholding is voluntary for private people.
2. The W-4V form is used to accomplish voluntary withholding, but it only covers that mentioned in 26 U.S.C. §3402(p)(1) and (2) but not (3). And yet, companies never ask their workers to use this form to stop withholding. See:
   W-4V, IRS
   https://www.irs.gov/forms-pubs/about-form-w-4-v
3. Because they don’t identify the W-4 as a “voluntary agreement, it therefore does not satisfy the requirements applicable to those who are PRIVATE and are NOT civil statutory “employees” under 26 U.S.C. §3401(c) who want to do VOLUNTARY WAGE withholding under 26 U.S.C. §3402(p)(3) instead of 26 U.S.C. §3402(p)(1) or (2).
4. Because the W-4 does NOT satisfy the requirements for PRIVATE people to voluntarily withhold under 26 U.S.C. §3402(p), then withholding cannot lawfully COMMENCE on these people based on submitting a W-4.
5. If you are as a private party who is not a government civil “employee” under 26 U.S.C. §3401(c) want to stop withholding, you can not submit a W-4 Exempt because you don’t satisfy any of the 21 criteria for being exempt in 26 U.S.C. §3121(b).
6. The only option you have to stop withholding is a written statement that is NOT a W-4. Any company that accepts a W-4 Exempt to stop withholding for private people not within the definition of “State” in 4 U.S.C. §110(d) and 42 U.S.C. §1301 is operating ILLEGALLY. You cannot BY CONSENT alone expand this definition by submitting a W-4. That would violate the separation of powers and usurp exclusive jurisdiction of the legislature as the only party who can legislate.
7. Although 26 U.S.C. §3402(n) provides for the W-4 Exempt and a Treasury approved form in the case of ONLY a PUBLIC civil “employee”, 26 C.F.R. §31.3402(p)-1(b)(2) acknowledges there is an ADDITIONAL way in the case of PRIVATE people who are not CIVIL “employees”, which is simply providing YOUR OWN statement.
8. The following form does this, so long as it identifies itself as being submitted in accordance with 26 C.F.R. §31.3402(p)-1(b)(2):
   W-8SUB, Form #04.231
   https://sedm.org/Forms/04-Tax/2-Withholding/W-8SUB.pdf

More on the above at:

1. Why You Aren’t Eligible for Social Security, Form #06.001
   https://sedm.org/Forms/06-AvoidingFranch/SSNotEligible.pdf
2. Microsoft Copilot: Legal Violations Resulting from Constitutional States acting as Federal Territories, FTSIG
   https://ftsig.org/microsoft-copilot-legal-violations-resulting-from-constitutional-states-acting-as-federal-territories/

5. Electronic or substitute W-4 provided by your employer MUST provide all the same options as the printed W-4 form

When you submit or are asked to submit a W-4 by the company you work for, companies may sometimes provide an online method of submitting the W-4. This online system often interferes with submitting a properly prepared W-4 consistent with your nonresident alien status. Treasury regulations, however, require that whatever method they provide for submitting the W-4 must have all the same options as the current printed form. That means:

1. They must provide a method of writing in “NRA” in the space below block 4(c) as described on Notice 1392, p. 2 of , Catalog No. 54303E.

2. They must accept a statement or notice to stop withholding in lieu of submitting a W-4 Exempt as provided for in 26 C.F.R. §31.3402(p)-1(b)(2). W-4 Exempt is only for those CONSENTING to call their earnings PUBLIC “wages” and a “federal payment” under 26 U.S.C. §3402(p)(1)(A). If you don’t consent, you don’t earn “wages” and can’t use the W-4 form to stop withholding.

The IRS requires that any electronic or substitute Form W‑4 must contain identical language and options to the official printed version, and must comply with IRS rules for substitute forms. This requirement is explained in IRS guidance such as Topic No. 753 and the Employment Tax Regulations (Treas. Reg. §31.3402(f)(5)-1(c)), as referenced on the IRS website.

Typically, the companies electronic W-4 system is NON-COMPLIANT with IRS requirements above and will try to shoe horn you into submitting a W-4 exempt when you aren’t lawfully allowed to do so. In response to such demands, you should tell them that you want to obey the law and that it would be FRAUD and perjury to do so. Ask them on the record and in writing or on a recorded call if they would document their request for you to violate the law. Then you have them.

Where the IRS says the online system must provide all the same options as the printed form and conform with the form instructions

• IRS Topic No. 753 (Form W‑4, Employee’s Withholding Certificate) States that employers may establish an electronic system to receive Forms W‑4, but if they use a substitute form, it must:
  • Contain language identical to the official IRS Form W‑4.
  • Provide the same tables, instructions, and worksheets as the printed form.
  • Meet current IRS rules for substitute forms.
• IRS Regulations (Treas. Reg. §31.3402(f)(5)-1(c)) These regulations, cited in IRS guidance, specify requirements for electronic W‑4 systems. They ensure that electronic versions are legally equivalent to paper forms.
• IRS Publication 15‑A (Employer’s Supplemental Tax Guide) Reinforces that electronic or substitute W‑4s must mirror the official IRS form in content and options.

What this means in practice

• If you fill out a W‑4 electronically (through payroll software or an employer portal), the system must offer the same filing status choices, worksheets, and withholding adjustments as the printed IRS form.
• Employers cannot create a “simplified” W‑4 that omits options or changes the wording.
• Employees submitting a non‑compliant substitute form are treated as if they failed to furnish a W‑4 at all.

Key IRS Pages

• About Form W‑4
• 2025 Form W‑4 PDF
• Topic No. 753, Form W‑4

References:

1. IRS, Topic no. 753, Form W-4, Employees Withholding Certificate
https://www.irs.gov/taxtopics/tc753

2. IRS, About Form W-4, Employee’s Withholding Certificate
https://www.irs.gov/forms-pubs/about-form-w-4

3. IRS, 2025 Form W-4 – Internal Revenue Service
https://www.irs.gov/pub/irs-pdf/fw4.pdf?1762580848

6. 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:

• Write “NRA” above the dotted line on Step 4c.
• Not write “exempt” on line 7 of the old W-4 form
  https://www.irs.gov/individuals/international-taxpayers/aliens-employed-in-the-us

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.

6.1. “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/

6.2. “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; SOURCE: https://www.irs.gov/pub/irs-pdf/n1392.pdf]

Like everything else that is taxable, it means labor rendered in connection with a “trade or business” excise taxable franchise and office. 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 on loan to the company you work for. As such, it is NOT the earnings of you personally or privately, 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 legislatively foreign 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^PRI“, 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.

6.3. “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. God calls private people who do this “harlots” or whores and threatens them with a curse in Deut. 28:43-51. If you don’t rebut the presumption created by the W-2, and in the definition of “employee^PUB” through the abuse of the word “includes”, 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 what Mark Twain called “The District of Criminals”. 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/

7. Voluntary NON-Withholding Agreement under 26 U.S.C. 3402(p)(3) for PRIVATE non-“employees”

Here’s a template for a voluntary non-withholding agreement tailored to a private individual who does not meet the statutory definition of “employee” under 26 U.S.C. § 3401(c) and wishes to decline withholding without filing a W-4 Exempt. This document asserts that no withholding obligation arises because no statutory employment relationship exists.

Voluntary Non-Withholding Agreement Template

VOLUNTARY NON-WITHHOLDING AGREEMENT

This agreement is entered into by and between:

[Full Legal Name of Individual]  
[Address]  
[City, State, ZIP Code]  
[Phone Number]  
[Date]

and

[Name of Payer or Organization]  
[Address]  
[City, State, ZIP Code]

Subject: Declaration of Non-Employee Status and Voluntary Non-Withholding under 26 U.S.C. § 3402(p)

I, [Full Legal Name], hereby declare and affirm the following:

1. I am not an “employee” as defined in 26 U.S.C. § 3401(c), which limits the term to officers, employees, or elected officials of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of the foregoing.

2.  Only by submitting a voluntary withholding agreement can I be brought within the the class of "employee" in 26 U.S.C. § 3401(c) through the operation of "includes" within this definition as authorized by 26 U.S.C. § 7701(c).  I do not agree to withholding, and thus the expansive definition that incorporates private workers like myself is inoperative.   

3. I am a private individual engaged in private, non-federally connected activities, and I do not occupy any office or position within the scope of the statutory definition of “employee.”

4. I am not subject to mandatory withholding under 26 U.S.C. § 3402(a), and I do not wish to enter into a voluntary withholding agreement under 26 U.S.C. § 3402(p).

5. I do not authorize the filing of IRS Form W-4 or W-4V, nor do I consent to any withholding of federal income tax from payments made to me.

6. I cannot use the W-4 Exempt because I do not satisfy the criteria found in 26 U.S.C. § 3121(b) for doing so. It would be fraudulent and illegal to do so, in fact.  Rather, I am doing so under the authority of 26 U.S.C. § 3402(p)(3).

7. W-2 reporting on my earnings would be unauthorized and fraudulent by connecting me with an "employee" status that I do not have.  

8. This declaration shall serve as formal notice that no withholding agreement exists and no W-2 reporting is authorized between myself and [Name of Payer], and that any withholding would be unauthorized and contrary to my expressed intent.

9. I affirm that this declaration is made voluntarily, without coercion, and is based on my understanding of the statutory definitions and my legal status.

Signed this ___ day of ____________, 20___.

_____________________________  
[Signature of Individual]  
[Printed Name]

Acknowledged by:

_____________________________  
[Signature of Payer Representative]  
[Printed Name and Title]  
[Date]

Notes

• This document is not a substitute for legal advice, but it is structured to assert jurisdictional boundaries and statutory interpretation.
• It is not filed with the IRS, but retained between parties to document the absence of a withholding agreement.
• You may attach a statutory analysis or affidavit explaining why § 3401(c) does not apply to your activities.

Affidavit of Non-Employee Status and Non-Consent to Withholding

AFFIDAVIT OF NON-EMPLOYEE STATUS  
AND NON-CONSENT TO WITHHOLDING

I, [Full Legal Name], a living man/woman, being of sound mind and competent to testify, do hereby declare under penalty of perjury under the laws of the United States of America that the following is true and correct to the best of my knowledge and belief:

1. I am not now, nor have I ever been, an “employee” as defined in 26 U.S.C. § 3401(c), which states:

   “For purposes of this chapter, the term ‘employee’ includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing.”

2. I am not engaged in any “trade or business” as defined in 26 U.S.C. § 7701(a)(26), which limits the term to “the performance of the functions of a public office.”

3. I am not a party to any voluntary withholding agreement under 26 U.S.C. § 3402(p), nor do I consent to the use of IRS Form W-4 or W-4V for any purpose.

4. I am not a “person” made liable for withholding under 26 U.S.C. § 3402(a), as I do not receive “wages” as defined in 26 U.S.C. § 3401(a), which applies only to remuneration paid to an “employee” by an “employer” as defined in § 3401(d).

5. I am a private individual engaged in private, non-federally connected activities, and I do not occupy any office or agency relationship with the United States government or any of its political subdivisions.

6. I do not waive any rights protected under the Constitution of the United States, including the right to contract, the right to due process, and the right to be free from compelled association or compelled performance absent a lawful nexus.

7. I reserve all rights, including those secured by the Ninth and Tenth Amendments to the Constitution for the United States of America.

Executed this ___ day of ____________, 20___.

[Signature]  
[Printed Name]  
[State]  
[County]

Subscribed and sworn before me this ___ day of ____________, 20___.

_________________________  
Notary Public  
My Commission Expires: ____________

This affidavit is designed to be paired with your non-withholding agreement and can be presented to a payer or employer to document your legal position. It is especially useful when asserting that withholding cannot lawfully commence absent a statutory nexus or voluntary agreement.

Below is a sample debate on the content of this section found on this site:

DEBATE: Copilot v. FTSIG on NRA withdrawing W-4, FTSIG
https://ftsig.org/debate-copilot-v-ftsig-on-nra-withdrawing-w-4/

8. RESPONSE to Voluntary Non-Withholding Agreement under 26 U.S.C. 3402(p) for PRIVATE non-“employees”

The fact that you can VOLUNTEER under 3402(p) is a subtle recognition of the right to UNVOLUNTEER.

Justice is defined as the right to be left alone. If you never volunteer, they have to leave you alone. Meaning, they can’t withhold or report.

What is “Justice”?, Form #05.050
https://sedm.org/Forms/05-MemLaw/WhatIsJustice.pdf

It’s definitely not CRAZY to expect justice. The founders in the Federalist Papers said the purpose of establishing government is justice!

“Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.” 

[The Federalist No. 51 (1788), James Madison]

The only authority we see for withholding occurs through the individual^PRI withholding election of employee^PUB under 26 U.S.C. §3401(c) on the W-4. ONLY THEN does the payer become an employer^PUB under 26 U.S.C. §3401(d). But even as an employer^PUB, they aren’t necessarily a “withholding agent” under 26 U.S.C. §7701(a)(16). They are just a BAILMENT AGENT for federal payments. The two are completely distinct. Remember: IRS classifies Subtitle C withholding as “Gift taxes”. W-2 withholdings don’t become Subtitle A income^PUB until the W-2 is attached to the tax return as a CREDIT to the actual Subtitle A amount due and the tax is SELF-ASSESSED.

But apart from your willingness to permit withholding, there is zero mechanism in 26 U.S.C. §3402 that gives the company the authority to withhold beyond my consent.

And if they maintain their position that they have to withhold without your consent, then there is no mutual agreement, and the payments cease to be wages^PUB.

Here’s the challenge: Getting any counterparty to agree that, as a worker for their company, you are not embraced by the enlargement of “includes” and “including” as used in this definition:

26 U.S. Code § 3401 – Definitions

(c) Employee

For purposes of this chapter, the term “employee” includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term “employee” also includes an officer of a corporation. IRC § 3401(c).

We know that Congress can only write rules for PUBLIC property, nto PRIVATE property. So the above civil status is status^PUB which you have to volunteer for. Once you elect the civil status^PUB as property^PUB, wages^PUB come along for the ride. This process of conversion is exhaustively described in:

Microsoft Copilot: Public Interest Doctrine v. Public Rights Doctrine, FTSIG
https://ftsig.org/microsoft-copilot-public-interest-doctrine-v-public-rights-doctrine/

Why is this important? When you explain that the general class embraced by the term “includes” is the public sector, they could just say, “No. it’s any employee.” And they wouldn’t be wrong. But their logic is errant with respect to how they arrived at that conclusion. It is only through 26 U.S.C. §3402(p)(3) that a private sector worker’s payments are

“… treated as if they were wages paid by an employer to an employee to the extent that such remuneration is paid or other payments are made during the period for which the [W-4] agreement is in effect.”

[26 U.S.C. §3402(p)(3)(B)]

That’s where you will likely see the discussion go next after submitting the Voluntary NON-Withholding Agreement. The goal is to shed light on how the private sector gets dragged into this deal. If you go scorched earth with a form W-8SUB, Form #04.231, it may all just get shut down, and nobody will look at it much less try to understand it. You’re not disputing a taxable wage. But you will get an opportunity to show them that my payments will not constitute “wages” unless we reach a mutual agreement.