We made a change to the Form 8833 (Treaty-Based Return Position) flowchart that we published earlier this week. The change relates to residency of individuals that are dual resident taxpayers.
Treas. Reg. §301.6114-1(c)(2) provides that Form 8833 is required for individuals claiming that residency is determined under a treaty only if the income items reportable from the change in residency are greater than or equal to $100,000. However, Treas. Reg. §301.7701(b)-7(b) and (c) require that Form 8833 be filed for all taxpayers claiming that residency is determined under a treaty.
To reflect the requirement to file Form 8833 under Treas. Reg. §301.7701-7(b) and (c) for all dual resident taxpayers, we moved the residency of individuals box (an orange box) to near the beginning of the flowchart.
Today we published a flowchart on our sister website, Tax-Charts.com, regarding Treas. Reg. §301.6114-1, which deals with the disclosure of treaty-based return positions on IRS Form 8833. The flowchart goes through the exceptions to filing Form 8833 and includes the circumstances where Form 8833 is specifically required to be filed.