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I moved from France to the United States of Amercia with my wife a couple of months ago. I'm on a J1 Visa, working for an University as a Research Scholar and my wife is on a J2 visa. She does not work, and we are both French citizens.

When we informed our French bank that we moved to the USA, they asked us to fill W8-BEN or W9 forms, depending if we were US person or Non Us person.

My situation was "easy" and common: I registered at the Foreign National Information System (FNIS), filled a SS-5 to get a Social Security Number (SSN), and then completed a W8-BEN and a form 8233 (certification for withholding exemption).

My wife's situation is more complex, as it seems. It seems that she needs a SSN or a ITIN to fill a W8-BEN or a W9. She can't apply for a SSN, as she does not work, so we filled a W7 form (Application for IRS Individual Taxpayer Identification Number). It came back with a rejection letter:

We received your application for an Individual Taxpayer Identification Number (ITIN) but have rejected it because you didn't provide an exception number or correct information in check box (h).

The aforementioned box contains

Additional information for a and f: Enter Treaty Country : … and treaty article number: …

As we are in the a case (Nonresident alien required to get ITIN to claim tax treaty benefit), we indicated in those fields respectively "France" and "Article #20 (J2-dependant)".

I called the IRS this morning, and I've been told that our application was rejected because we did not provide the original documents needed (among which, her passport), so that we had to come in person to one of the IRS office. The person I had on the phone did not seem really informed of our situation, and I'm really puzzled by the mismatch between his answer and what's written in the rejection letter.

Sorry for the long background, my question is: do we need her to fill a W8-BEN to please our French bank or to make a joint tax return? If so, how can we get a ITIN number for her?

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    Are you sure she needs an ITIN at all? The W-8BEN line for ITIN says "if required", and I don't see anything in the instructions that indicates it is required for her case.
    – user102008
    Feb 24, 2016 at 3:40
  • @user102008 : well, maybe not. The instruction for W-8BEN lists cases where ISIN or SSN are required (p. 6), and I don't think she matches any. Furthermore, it is written "If you are claiming treaty benefits, you are generally required to provide an ITIN if you do not provide a tax identifying number issued to you by your jurisdiction of tax residence on line 6.", but she does have a French tax identifying number, so she might not need an ITIN. I think you're right.
    – Clément
    Feb 24, 2016 at 4:08
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    @Clément she is not claiming any treaty benefits. In this case the W8-BEN is to certify non-resident status to the bank.
    – littleadv
    Feb 24, 2016 at 6:38
  • Why would you inform your French bank in the first place? Can you call them and say your wife is no longer in the US?
    – JonathanReez
    Jul 20, 2017 at 17:38
  • @JonathanReez Because they asked me! I believe it is a consequence of FACTA. As for the second question, maybe my question was improperly formulated, by my wife was in the US at that time.
    – Clément
    Aug 10, 2017 at 1:38

2 Answers 2

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As it turns out, my wife could get an ITIN only if she was going to be claimed as an exemption for my taxes.

The IRS doesn't seem to deliver ITIN for any other reason, so we waited for my "treaty rights" to be exhausted, and filled out an application when we did our taxes the next time.

Maybe there is another way to proceed, but it seems that you can't get an ITIN in other scenario, and hence you can't fill l W8-BEN or W9.

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Yes, you do. I don't see how the article 20 in the French treaty applies to your wife. It only seems to apply to you. But apparently the IRS considers her exempt as well, so you can use that.

On J2, it may be worth to make an effort and get an SSN. She can get EAD which will allow her to apply for SSN. With the recent changes in the ITIN rules, it may be even easier to go that route...

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    I think it would be W-8BEN, because "teachers/trainees" (along with dependents) are exempt individuals, and thus nonresident aliens, for the first 2 calendar years.
    – user102008
    Feb 24, 2016 at 3:41
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    Publication 519 section on exempt individuals: teachers and trainees "Also included are immediate family members of exempt teachers and trainees." The same is also true for immediate family members of students.
    – user102008
    Feb 24, 2016 at 3:46
  • Thanks. To fill a W9, Part 1 requires a SSN or a EIN (employer identification number), but she does not have any of these. I'm willing to believe that the treaty can be applied only to me. Getting an EAD (Employment Authorization Document) seems even more complex to me, and costly ($380). Plus, I think she's not authorized to leave the country when her EAD is examined (but I can't find back that information), but we are going to leave the US for a couple of weeks soon.
    – Clément
    Feb 24, 2016 at 4:01
  • @user102008 thank you, updated.
    – littleadv
    Feb 24, 2016 at 6:35
  • @Clément well, make your own considerations, what can I say. The IRS are not making getting ITIN easy as you've noticed, for no apparent reason if you ask me.
    – littleadv
    Feb 24, 2016 at 6:37

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