Form 8833
Treaty-Based Return Position Disclosure
Who Must File
Any taxpayer taking a position on a US tax return that a treaty of the United States overrides or modifies any provision of the Internal Revenue Code.
Deadline
Filed with Form 1040 or 1040-NR by the applicable deadline
Penalty
$1,000 per failure to disclose a treaty-based position ($10,000 for C corporations)
Step-by-Step Filing Instructions
Identify the treaty article you are relying on (e.g., Article IV tie-breaker, Article XVIII pensions).
Determine the IRC provision being overridden by the treaty.
Complete Part I with your treaty country (Canada) and the relevant article.
Explain the treaty-based position and the facts supporting it in Part IV.
Attach the form to your 1040 or 1040-NR.
Tips & Best Practices
Common uses: treaty tie-breaker (Article IV), pension exemption (Article XVIII), and reduced withholding rates.
Filing 8833 does not guarantee the IRS will accept your position.
Always keep supporting documentation like your lease, bank statements, and ties analysis.
Frequently Asked Questions
Do I need Form 8833 for the treaty tie-breaker?
Yes. If you use Article IV of the Canada-US Tax Treaty to claim nonresident status despite passing the SPT, you must file Form 8833.
Can I file 8833 without a tax return?
No. Form 8833 must be attached to a timely-filed (including extensions) Form 1040 or 1040-NR.
Is Form 8833 needed for RRSP treaty deferral?
Generally no, because the IRS has a specific revenue procedure for RRSP deferral elections. However, some practitioners recommend filing it for additional disclosure.
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