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Consider a non-US citizen who is married to a US citizen. The non-US citizen is not a US resident for income tax purposes, but the couple have elected under section 6013(g) of the Internal Revenue Code for the non-US citizen to be treated as a resident, to enable the couple to file a joint tax return.

The non-US citizen now wishes to open a bank account in a country other than the US. The bank asks whether she is a US citizen or permanent resident, and it asks questions about how much time she spends in the US. (All of her time spent in the US, however, was in G-4 status, so it does not count for the purpose of the substantial presence test.) It does not ask whether she has filed US income tax forms nor whether she is a tax resident for any other reason.

Is the bank required to treat her as a US person? The research I've done suggests that it is not, because the 6013(g) election applies only to chapters 1 and 24 of the Internal Revenue Code, while FATCA is in chapter 4. However, some things I've seen suggest a different interpretation, namely that the election to be treated as a US resident for the purpose of income taxation means that the person is a "US person" for the purpose of FATCA.

Which interpretation is correct?

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  • What sources or citations support the idea that a 6013(g) election turns the non-US citizen spouse into a "US person" for FATCA purposes? Jun 25 at 18:12
  • I'm not sure the question is entirely clear. FATCA potentially imposes reporting obligations on both the taxpayer and the financial institution. It seems clear that the taxpayer making the 6013(g) election is required to file Form 8938 to satisfy their own reporting obligation since that exact situation is called out in the form's instructions, so to this extent the person is a "US person" for this aspect of FATCA. It doesn't follow, however, that the bank necessarily has a reporting obligation; they ask questions, you answer, they decide. I think you are really asking about the bank.
    – Dennis
    Jun 25 at 19:41

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