I graduated from my program in May 2010. I have applied for OPT and am awaiting my EAD card, which should hopefully arrive in August. If so, I will be authorized to work from July 1st 2010. I have not yet been in the US for 5 years, so I am a non resident alien.

I have been offered a book contract from a US publisher for the manuscript of a book I began as part of my studies. I have not yet signed the book contract. The terms of the contract will require me to complete the book over the course of the next 6 months.

The publisher has provided me with a W-8BEN. This is standard practice for a US publisher agreeing a contract (and paying royalties) to a non-US author. However, I feel that the fact that I am living in the US (albeit in F1/OPT status and as a non resident alien) may render my situation slightly different. I have been advised to file a W9, but I don't think that's right as I am not a resident alien. And I have also been advised that I should perhaps file a W-8 ECI. However, I do not consider that the income from this book contract would be effectively connected with the conduct of a trade or business in the US, as the W-8ECI would require me to. I do not have an LLC or anything like that in my name, and this book was begun as a master's thesis, i.e. as part of studies rather than part of a trade. Also my country of residence has a tax treaty with the US and I cannot see that I could avail of this in W-8 ECI.

My question is this: should I file the W-8 BEN? Is what I say above enough to convince the IRS that I am not obliged to file a W-8 ECI?

And does the fact that I have an SSN (I received it when I did some TA'ing on campus 3 years ago) make a difference to what form I should file?

Many thanks.

Alice

Alice:

As a non-resident alien, the correct form to file is Form W-8BEN, regardless of whether you have a SSN or not. Form W-9ECI does not apply in your case.

If and when you convert to resident alien status, then (and only then) will you file Form W-9.

Thank you so much for your answer, Atlanta Tax Expert.

Would I be right in thinking that in order to be fully in compliance with the terms of the W-8BEN and the tax treaty with my home country, I should do the work of completing this book outside of the US (in my home country) rather than in the US? I think that when I get my EAD for my OPT, I will be permitted to work on it here, but does the W-8BEN and tax treaty not presume that I am doing the work WITHOUT having a US presence?

No, it does not make that presumption.

Your physical location in the case is irrelevant. What IS relevant is your status as either a resident alien (in which case you file Form W-9) or as a non-resident alien (in which case you file Form W-8BEN).