Form 8833 Treaty-Based Return Position Disclosure Under Section 61

Form

8833

(Rev. December 2012)
Department of the Treasury
Internal Revenue Service

Treaty-Based Return Position Disclosure
Under Section
6114 or 7701(b)
▶

OMB No. 1545-1354

Attach to your tax return.
▶ Information about Form 8833 and its instructions is at www.irs.gov/form8833.

Attach a separate Form 8833 for each treaty-based return position taken. Failure to disclose a treaty-based return position may
result in a penalty of $1,000 ($10,000 in the case of a C corporation) (see section 6712).
U.S. taxpayer identifying number

Name
Address in country of residence

Address in the United States

Check one or both of the following boxes as applicable:
• The taxpayer is disclosing a treaty-based return position as required by section 6114 . . . . . .
• The taxpayer is a dual-resident taxpayer and is disclosing a treaty-based return position as required by
Regulations section 301.7701(b)-7 . . . . . . . . . . . . . . . . . . . . . . .

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Note. If the taxpayer is a dual-resident taxpayer and a long-term resident, by electing to be treated as a resident of a foreign country
for purposes of claiming benefits under an applicable income tax treaty, the taxpayer will be deemed to have expatriated pursuant to
section 877A. For more information, see the instructions.
Check this box if the taxpayer is a U.S. citizen or resident or is incorporated in the United States . . . . . . . . . . ▶
3 Name, identifying number (if available to the taxpayer), and
1
Enter the specific treaty position relied on:
address in the United States of the payor of the income (if
a Treaty country
fixed
or determinable annual or periodical). See instructions.
b Article(s)
List the Internal Revenue Code provision(s) overruled or
2
modified by the treaty-based return position
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List the provision(s) of the limitation on benefits article (if any) in the treaty that the taxpayer relies on to prevent application
of that article ▶

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Explain the treaty-based return position taken. Include a brief summary of the facts on which it is based. Also, list the nature
and amount (or a reasonable estimate) of gross receipts, each separate gross payment, each separate gross income item, or
other item (as applicable) for which the treaty benefit is claimed

For Paperwork Reduction Act Notice, see the instructions.

Cat. No. 14895L

Form

8833

(Rev. 12-2012)

[This page left blank intentionally]

Form 8833 (Rev. 12-2012)

Section references are to the Internal
Revenue Code unless otherwise noted.

Future Developments
For the latest information about
developments related to Form 8833 and
its instructions, such as legislation
enacted after they were published, go to
www.irs.gov/form8833.

General Instructions
Purpose of Form
Form 8833 must be used by taxpayers
to make the treaty-based return position
disclosure required by section 6114. The
form must also be used by dual-resident
taxpayers (defined later) to make the
treaty-based return position disclosure
required by Regulations section
301.7701(b)-7. A separate form is
required for each treaty-based return
position taken by the taxpayer.

Who Must File

Page

b. Beneficial owner that is a direct
account holder of a U.S. financial
institution or qualified intermediary, or a
direct partner, beneficiary or owner of a
withholding foreign partnership or trust,
from that U.S. financial institution,
qualified intermediary, or withholding
foreign partnership or trust, or
c. Taxpayer that is not an individual or
a State, if the amounts are not received
through an account with an intermediary
or with respect to an interest in a
partnership or a simple or grantor trust,
and if the amounts do not total more
than $500,000 for the tax year.
Regulations sections 301.6114-1(c)(6)
(ii), (7)(iv), and (8)(ii) provide that the
exceptions described earlier do not
apply to any amounts for which a treatybased return disclosure is specifically
required under these instructions.
The following are amounts for which a
treaty-based return disclosure on Form
8833 is specifically required.

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residence by the United States and its
treaty partner, and the individual
determines that he or she is a resident
of the foreign country for treaty
purposes, the individual may claim treaty
benefits as a resident of that country.
If you are a dual-resident taxpayer and
you choose to claim treaty benefits, you
are treated as a nonresident alien in
figuring your U.S. income tax liability for
the part of the tax year you are
considered a dual-resident taxpayer. If
this is the case, attach Form 8833 to
Form 1040NR, U.S. Nonresident Alien
Income Tax Return, or Form 1040NR-EZ,
U.S. Income Tax Return for Certain
Nonresident Aliens With No Dependents.
Form 1040NR or Form 1040NR-EZ must
be timely filed (including extensions). For
purposes other than figuring your U.S.
income tax liability, you are treated as a
U.S. resident (see Regulations section
301.7701(b)-7(a)(3)).

When and Where To File

Generally, a taxpayer who takes a
treaty-based return position must
disclose that position. See Exceptions
from reporting below.
A taxpayer takes a treaty-based return
position by maintaining that a treaty of
the United States overrules or modifies
a provision of the Internal Revenue
Code and thereby causes (or potentially
causes) a reduction of tax on the
taxpayer’s tax return. For these
purposes, a treaty includes, but is not
limited to, an income tax treaty; estate
and gift tax treaty; or friendship,
commerce, and navigation treaty. See
Regulations sections 301.6114-1(a) and
(b) for more details and for examples of
treaty-based return positions taken by
taxpayers for which they must make
disclosure.

• Amounts described in paragraph 2a or
2c earlier that are received by a
corporation that is a resident under the
domestic law of both the United States
and a foreign treaty jurisdiction.

Exceptions from reporting. See
Regulations section 301.6114-1(c) for
examples of treaty-based return
positions taken by taxpayers for which
they are not required to make
disclosure.

• Amounts described in paragraph 2a or
2c earlier that are received by a foreign
“interest holder” in a “domestic reverse
hybrid entity,” as those terms are used
in Regulations section 1.894-1(d)(2).

For more information about identifying
numbers, see the instructions for the tax
return with which this form is filed.

Dual-resident taxpayer. An alien
individual is a dual-resident taxpayer if
that individual is considered to be a
resident of both the United States and
another country under each country’s
tax laws. If the income tax treaty
between the United States and the other
country contains a provision for
resolution of conflicting claims of

Enter the information in the following
order: city, province or state, and
country. Follow the country’s practice for
entering the postal code. Please do not
abbreviate the country name.

In general, disclosure of a treatybased return position is not required for
amounts that are:
1. Reported on Form 1042-S, and
2. Received by a:
a. Related party from a reporting
corporation within the meaning of
section 6038A (relating to information
returns on Form 5472 filed by U.S.
corporations that are 25-percent owned
by a foreign person),

• Amounts described in paragraph 2a or
2c earlier that are received by a
corporation that is a resident of both the
jurisdiction whose treaty is invoked and
another foreign jurisdiction that has an
income tax treaty with that treaty
jurisdiction. See Revenue Ruling
2004-76, 2004-31 I.R.B. 111, available at
www.irs.gov/pub/irs-irbs/irb04-31.pdf.
• Amounts described in paragraph 2a or
2c earlier that are received by a foreign
collective investment vehicle that is a
contractual arrangement and not a
person under foreign law. See Example
7 of Regulations section 1.894-1(d)(5).

Attach Form 8833 to your tax return (i.e.,
Form 1040NR, Form 1040NR-EZ, Form
1120-F, etc.). If you would not otherwise
be required to file a tax return, you must
file one at the IRS Service Center where
you would normally file a return to make
the treaty-based return position
disclosure under section 6114 (see
Regulations section 301.6114-1(a)(1)(ii))
or under Regulations section
301.7701(b)-7.

Specific Instructions
U.S. Taxpayer Identifying Number
The identifying number of an individual is
his or her social security number or
individual taxpayer identification number.
The identifying number of all others is
their employer identification number.

Address in Country of Residence

Form 8833 (Rev. 12-2012)

Page

Termination of U.S. Residency

Line 3

If you are a dual-resident taxpayer and a
long-term resident (LTR) and you are
filing this form to be treated as a resident
of a foreign country for purposes of
claiming benefits under an applicable
U.S. income tax treaty, you will be
deemed to have terminated your U.S.
residency status for federal income tax
purposes. Because you are terminating
your U.S. residency status, you must file
Form 8854, Initial and Annual
Expatriation Statement, and you may be
subject to tax under section 877A. You
are an LTR if you were a lawful
permanent resident of the United States
in at least 8 of the last 15 tax years
ending with the year your status as an
LTR ends. For additional information,
see the Instructions for Form 8854,
Publication 519, U.S. Tax Guide for
Aliens, and Notice 2009-85, 2009-2 C.B.
598.

Income that is fixed or determinable
annual or periodical includes interest
(other than original issue discount),
dividends, rents, premiums, annuities,
salaries, wages, and other
compensation. For more information
(including other items of income that are
fixed or determinable annual or
periodical), nonresident aliens and dualresident taxpayers filing as nonresident
aliens should see section 871(a) and
Regulations section 1.871-7(b) and (c).
Foreign corporations should see section
881(a) and Regulations section
1.881-2(b) and (c).
Paperwork Reduction Act Notice. We
ask for the information on this form to
carry out the Internal Revenue laws of
the United States. You are required to
give us the information. We need it to
ensure that you are complying with these
laws and to allow us to figure and collect
the right amount of tax.
You are not required to provide the
information requested on a form that is
subject to the Paperwork Reduction Act
unless the form displays a valid OMB
control number. Books or records

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relating to a form or its instructions must
be retained as long as their contents
may become material in the
administration of any Internal Revenue
law. Generally, tax returns and return
information are confidential, as required
by section 6103.
The time needed to complete and file
this form will vary depending on
individual circumstances. The estimated
burden for individual taxpayers filing this
form is approved under OMB control
number 1545-0074 and is included in
the estimates shown in the instructions
for their individual income tax return. The
estimated burden for all other taxpayers
who file this form is shown below.
Recordkeeping .

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Learning about the
law or the form . .

3 hr., 7 min.

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. 1 hr., 35 min.

Preparing and sending
the form to the IRS . . 1 hr., 43 min.
If you have comments concerning the
accuracy of these time estimates or
suggestions for making this form
simpler, we would be happy to hear
from you. See the instructions for the tax
return with which this form is filed.