8833 Treaty-Based Return Position Disclosure Under Section 61

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Form

8833

(Rev. December 2021)
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.
▶ Go to www.irs.gov/Form8833 for the latest information.
▶

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).
Name

U.S. taxpayer identifying number Reference ID number, if any (see instructions)

Address in country of residence

Address in the United States

DRAFT AS OF
September 17, 2021
DO NOT FILE
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 . . . . . . . . . . ▶
1
Enter the specific treaty position relied on:
3 Name, identifying number (if available to the taxpayer), and
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)
2
List the Internal Revenue Code provision(s) overruled or
modified by the treaty-based return position
4
5

6

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 ▶
Is the taxpayer disclosing a treaty-based return position for which reporting is specifically required pursuant
to Regulations section 301.6114-1(b)? . . . . . . . . . . . . . . . . . . . . . . .
Yes
No
If “Yes,” enter the specific subsection(s) of Regulations section 301.6114-1(b) requiring reporting . . . . ▶
Also include the information requested in line 6.
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. 12-2021)

DRAFT AS OF
September 17, 2021
DO NOT FILE
[This page left blank intentionally]

Form 8833 (Rev. 12-2021)

Page

Future Developments

• That a treaty reduces or modifies the
branch profits tax (section 884(a)) or the
tax on excess interest (section 884(f)(1)
(B));

For the latest information about
developments related to Form 8833 and
its instructions, such as legislation
enacted after they were published, go to
IRS.gov/Form8833.

• That a treaty exempts from tax or
reduces the rate of tax on dividends or
interest paid by a foreign corporation
that are U.S.-sourced under section
861(a)(2)(B) or section 884(f)(1)(A);

General Instructions

• That a treaty exempts from tax or
reduces the rate of tax on fixed or
determinable annual or periodical (FDAP)
income that a foreign person receives
from a U.S. person, but only if:

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

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specifically reportable, and thus careful
review of the regulations is advised. In
addition, some waivers do not apply to
positions that are specifically required to
be reported under these form
instructions. See Reporting specifically
required by Form 8833 instructions, later.

DRAFT AS OF
September 17, 2021
DO NOT FILE
Purpose of Form

Form 8833 must be used by taxpayers
to make the treaty-based return position
disclosure required by section 6114 and
the regulations thereunder (Regulations
section 301.6114-1). 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 annually for
each treaty-based return position taken
by the taxpayer, although a taxpayer
may treat payments or income items of
the same type received from the same
payor as a single item for reporting
purposes.

Who Must File
Generally, a taxpayer who takes a
treaty-based return position must
disclose that position, unless reporting is
specifically waived. 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.
Reporting specifically required.
Regulations section 301.6114-1(b)
specifically requires reporting on a Form
8833 for the following treaty-based
return positions. Note that this is not an
exhaustive list of all positions that are
reportable on a Form 8833 and that
some specifically reportable positions
are waived in certain circumstances
under Regulations section 301.6114-1(c).
• That a nondiscrimination provision of
the treaty prevents the application of an
otherwise applicable Code provision,
other than with respect to making an
election under section 897(i);
• That a treaty reduces or modifies the
taxation of gain or loss from the
disposition of a U.S. real property
interest;

(1) The amount is not properly
reported on Form 1042-S and the foreign
person is: (a) a controlled foreign
corporation (as defined in section 957) in
which the U.S. person is a U.S.
shareholder (as defined in section
951(b)); (b) a foreign corporation that is
controlled by a U.S. person within the
meaning of section 6038; (c) a foreign
corporation that is a 25-percent
shareholder of the U.S. person under
section 6038A; or (d) a foreign related
party, as defined under section
6038A(c)(2)(B);
(2) The foreign person is related to the
payor under section 267(b) or section
707(b) and receives income exceeding
$500,000, in the aggregate, from the
payor and the treaty contains a limitation
on benefits article; or
(3) The treaty imposes additional
conditions for the entitlement of treaty
benefits (for example, the treaty requires
the foreign corporation claiming a
preferential rate on dividends to meet
ownership percentage and ownership
period requirements);
• That income effectively connected with
a U.S. trade or business of a taxpayer is
not attributable to a permanent
establishment or a fixed base in the
United States;
• That a treaty modifies the amount of
business profits of a taxpayer
attributable to a permanent
establishment or a fixed base in the
United States;
• That a treaty alters the source of any
item of income or deduction (unless the
taxpayer is an individual);
• That a treaty grants a credit for a
foreign tax which is not allowed by the
Code;
• That the residency of an individual is
determined under a treaty and apart
from the Code. See Dual-resident
taxpayer below.
Exceptions from reporting. Regulations
section 301.6114-1(c) waives reporting
on a Form 8833 for certain treaty-based
return positions. In some instances, the
waiver narrowly applies to exempt from
reporting a treaty position that is

Positions for which reporting is waived
include, but are not limited to, the
following. See Regulations section
301.6114-1(c) for other waivers from
reporting.
• That a treaty reduces or modifies the
taxation of income derived by an
individual from dependent personal
services, pensions, annuities, social
security, and other public pensions, as
well as income derived by artists,
athletes, students, trainees, or teachers;
• That a Social Security Totalization
Agreement or Diplomatic or Consular
Agreement reduces or modifies the
income of a taxpayer;

• That a treaty exempts a taxpayer from
the excise tax imposed by section 4371,
but only if certain conditions are met (for
example, the taxpayer has entered into
an insurance excise tax closing
agreement with the IRS);

• That a treaty exempts from tax or
reduces the rate of tax on FDAP income,
if the beneficial owner is an individual or
governmental entity;
• If a partnership, trust, or estate has
disclosed a treaty position that the
partner or beneficiary would otherwise
be required to disclose;
• Unless modified by the instructions
below, that a treaty exempts from tax or
reduces the rate of tax on FDAP income
that is properly reported on Form 1042-S
and the amount is received by a:
a. Related party (within the meaning of
section 6038A(c)(2)) from a reporting
corporation within the meaning of
section 6038A(a) (a domestic corporation
that is 25% foreign owned and required
to file Form 5472);
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 withholding
foreign trust (whether the Form 1042-S
reporting is on a specific payee or
pooled basis); 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.

Form 8833 (Rev. 12-2021)

Reporting specifically required by
Form 8833 instructions. The following
are amounts for which a treaty-based
return disclosure on Form 8833 is
specifically required under these
instructions.

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for U.S. competent authority assistance.
See Rev. Proc. 2015-40, 2015-35 I.R.B.
236, or its successor.
If you choose to be treated as a
resident of a foreign country under an
income tax treaty, you are still treated as
a U.S. resident for purposes other than
figuring your U.S. income tax liability
(see Regulations section
301.7701(b)-7(a)(3)).

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year your status as an LTR ends. For
additional information, see the
Instructions for Form 8854, Initial and
Annual Expatriation Statement, and
Pub. 519, U.S. Tax Guide for Aliens.

Line 3

DRAFT AS OF
September 17, 2021
DO NOT FILE
• Amounts described in paragraph a or
c, above, that are received by a
corporation that is a resident under the
domestic law of both the United States
and a foreign treaty jurisdiction (a dualresident corporation).

• Amounts described in paragraph a or
c, above, 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 a or
c, above, 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).
• Amounts described in paragraph a or
c, above, 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).
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
residence by the United States and its
treaty partner, and the individual
determines that under those provisions
he or she is a resident of the foreign
country for treaty purposes, the
individual may claim treaty benefits as a
resident of that foreign country, provided
that he or she complies with the
instructions below.
If you are an individual who is a
dual-resident taxpayer and you choose
to claim treaty benefits as a resident of
the foreign country, 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 you are eligible to be treated
as a resident of the foreign country
pursuant to the applicable income tax
treaty and you choose to claim benefits
as a resident of such foreign country,
you must file Form 1040-NR, U.S.
Nonresident Alien Income Tax Return,
with Form 8833 attached. A dualresident taxpayer may also be eligible

When and Where To File

Attach Form 8833 to your tax return
(Form 1040-NR, 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 treatybased 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.
For more information about identifying
numbers, see the instructions for the tax
return with which this form is filed.

Reference ID Number
If the taxpayer is a foreign corporation,
enter any reference ID number assigned
to the foreign corporation by a U.S.
person with respect to which information
reporting is required (for example, on
Form 5471 or Form 5472).

Address in Country of Residence
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.

Termination of U.S. Residency
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 may be
subject to tax under section 877A and
you must file Form 8854, Initial and
Annual Expatriation Statement. 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

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).

Line 4

Name the specific test in the Limitations
on Benefits (LOB) article that is met. See
Table 4, Limitation on Benefits, at
IRS.gov/Individuals/InternationalTaxpayers/Tax-Treaty-Tables, for a
summary of the various tests contained
in the LOB article of each treaty. If you
have made a request with the U.S.
competent authority for a discretionary
determination and that request is still
pending, you may not claim benefits,
unless the treaty or technical explanation
specifically provides otherwise.

Line 5
If the taxpayer answers “Yes” to the
question on line 5, the taxpayer must
enter the subsection of Regulations
section 301.6114-1(b) with respect to
which the taxpayer is disclosing a treatybased return position. The taxpayer must
also provide the information requested
on line 6.

Line 6
All taxpayers taking a treaty-based
return position must provide the
requested information on line 6,
regardless of whether reporting is
explicitly required under Regulations
section 301.6114-1(b), unless it is
waived under Regulations section
301.6114-1(c). If applicable, the taxpayer
must explain why it meets the Limitation
on Benefits test identified on line 4, the
basis for the taxpayer meeting any
special requirements for claiming
benefits, such as those required to be
included on line 15 of Form W-8BEN-E,
and the amount (or a reasonable
estimate thereof) of the income affected
by the treaty claim. See Regulations
section 301.6114-1(d)(3) regarding rules
for reporting estimates of certain types
of income, such as sales or services
income.

Form 8833 (Rev. 12-2021)

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.

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may become material in the
administration of any Internal Revenue
law. Generally, tax returns and return
information are confidential, as required
by section 6103.

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