Do I file Form 8802 even if no tax is owed?
Certificate or waiver obligations of this kind are generally required on the facts rather than on the tax result, so a nil position does not remove one. US persons and entities who need to prove US residency to another country to obtain reduced withholding or a refund.
What happens if I have missed Form 8802 for several years?
Missed years are dealt with as a package rather than one at a time, because the route chosen for the first year affects the relief available for the rest. We map the years and the obligations before anything is filed.
Is Form 8802 the same as the other reports I already file?
No. Applies for the IRS certification of US residency that a foreign payer or tax authority needs before it will apply a treaty rate. Satisfying a different obligation, even one covering the same accounts or entity, does nothing for this one.
How do I prove to a foreign payer that I am a US resident?
The payer is usually not permitted to apply a treaty rate on your say-so; it needs certification from the IRS that you were a US resident for the year in question. Form 8802 is the application for that certification. The practical points are that it is applied for ahead of the payment, that the year certified has to be the year the income arises in, and that some countries want their own form completed alongside it. We prepare the application and tell you at the outset what the other country will also expect.
Which year should I request on my residency certification?
The year on the certification has to match the year the income arises in, not the year you happen to be applying in. That sounds obvious and it is the most common reason an application has to be made again. If a contract runs across a year end, or a payment slips, you may need certification for more than one year, and it is cheaper to request them together than to discover the gap when a payer refuses the treaty rate. We check the payment timetable before the application is drafted.
The payer already withheld at the full rate. Can I still fix it?
Sometimes, but it becomes a refund claim in the other country rather than a reduction at source, and that is a slower and more procedural route. The foreign authority will usually still want the IRS certification for the correct year, plus its own paperwork and often the withholding certificate the payer issued. The lesson most clients take from it is the lead time: the certification is meant to exist before the money moves. We pursue the claim where one is available, and set the next payment up properly.
Does my LLC or partnership apply, or do the owners?
That is the first question, and it is decided by how the entity is treated for US tax and by what the foreign authority will accept. Where an entity is transparent, the persons behind it are often the ones whose residency has to be certified, which changes whose name goes on the application and what supporting material is needed. Getting this wrong wastes the lead time rather than merely the fee. We establish whose residency is actually in issue before anything is submitted, and we confirm it in writing.
How far in advance should I apply for the certification?
Earlier than feels necessary. This is a lead-time problem rather than a technical one: the application is processed by the IRS, the certification then has to reach the payer or the foreign authority, and that authority may have its own form and its own queue behind it. If a payment is scheduled, work backwards from it. If a refund claim has a deadline in the other country, work backwards from that instead. We would rather start an application for a payment that never happens than be asked to rescue one that did.
Do I need the other country's own form as well?
Often, yes. Several countries require a domestic form, sometimes stamped or certified locally, in addition to the IRS certification, and a few will not look at the IRS document on its own. The requirement varies by country and by type of income, and it changes. We check what the specific authority currently asks for before the application is made, so that the two documents arrive together and the payer holds everything it needs to apply the treaty rate, rather than a partial file it will sit on.
How do I file US taxes when I am married to a foreign spouse?
Three routes. File separately, listing your spouse as a non-resident alien — which needs either an identification number for them or the accepted notation where none exists. Elect to treat them as a resident and file jointly, gaining the joint brackets and accepting their worldwide income. Or file as head of household if you have a qualifying dependant, which some Americans abroad can do while married. The right answer turns on their income and their assets. See a US person with a non-resident spouse.
What is a dual-status alien?
Someone who is a US tax resident for part of a year and a non-resident for the rest of it — almost always the year of arrival or the year of departure. You file one return covering both periods, with worldwide income and ordinary deductions for the resident part and US-source income under the non-resident rules for the other. Several ordinary reliefs, including joint filing, are restricted for the year. See dual-status alien.
