He's an Indian citizen--not a U.S. citizen. I'd appreciate it if you could share any other general best practices with this sort of arrangement as well.

I would agree with the other comments concerning employee versus subcontractor status. It's certainly easier to simply hire a subcontractor and pay him a fixed hourly rate without having to be concerned with payroll taxes, federal income tax withholding, employee health insurance, fringe benefits, etc.

If you hire him as a subcontractor and he is a nonresident for U.S. tax purposes, you need to collect an IRS Form W-8BEN from him to confirm his nonresident status.
If you don't collect this withholding certificate, the gross payments made to the contractor will be subject to backup withholding.

Nonemployee compensation paid to him during the tax year would likely be reported on a Form 1042-S and not a Form 1099-MISC. Forms 1099-MISC are used for U.S. tax residents.

If you decide to formally hire the individual as an employee and not a subcontractor, you'll need to analyze whether to withhold taxes on the employee's wages. U.S. employers are required to withhold payroll taxes at source on wages paid to employees. However, wages under Section 3401(a)(6) do not include remuneration paid for services performed by a nonresident alien individual. So long as you can confirm he is nonresident for federal income tax purposes, you won't be required to withhold payroll taxes on his wages. The greater issue, however, is what type of tax exposure you create in India by having an employee physically based in India. This could create payroll tax obligations in India, and could trigger corporate income tax obligations in India for your company.

Answered a year ago

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