Form 8833 Treaty-Based Return Positions

1 YesNoNoYesNoYesWas the position that a treaty exempts from tax, or reduces the rate of tax on, [ ] fixed or determinable annual or periodical income subject to withholding under section 1441 or 1442 that a foreign person receives from a person? SourceFDAPReg. (b)(4)(ii), -1(c)(1)(i)NoYesNoNoYesHas a closing agreement relating to entitlement to the exemption from the excise tax been entered into with the IRS by the foreign insurance company that is the beneficial recipient of the premium that is subject to the excise tax?Reg. (c)(1)(viii)(C)Closing AgreementYesNoNoHas the taxpayer taken a Return position that any treaty of the (including, but not limited to, an income tax treaty , estate and gift tax treaty , or friendship, commerce and navigation treaty ) overrules or modifies any provision of the Code and thereby effects (or potentially effects) a reduction of any tax incurred as any time?

2 treaty PositionStartForm 8833 - Reg Disclosure of Treaty-Based Return PositionsCopying, scanning, or other duplication of this chart is strictly flowchart has been extensively reviewed to be as complete and accurate as possible. However, due to the complexity of these rules, this flowchart undoubtedly includes errors and omissions. You should consult a tax professional for individual advice regarding your own situation. This flowchart is not updated for changes in the tax laws and should not be relied upon for any purpose 2017, Andrew Mitchel LLCLast Updated January 27, 2017 form 8833 is NOT NotRequiredReg.

3 (a)(1)(i)YesWas the position that residency of an individual is determined under a treaty and apart from the Internal Revenue Code? An alien individual is a "dual-resident" taxpayer if that individual is considered to be a resident of both the and another country under each country's tax laws. Dual resident taxpayers claiming residency are not required to file form 8833 under section 6114 if the income items reportable only by reason of residency status are less than or equal to $100,000 in the aggregate. However, under the regulations dealing with residency status, form 8833 is required to be filed for dual resident taxpayers claiming residency under a treaty .

4 See Reg. (b) of IndividualReg. (b)(8), -1(c)(2), clause 2, (b)-7(b) & (c) NoWas the position that a treaty reduces or modifies the taxation of income derived from dependent personal services, pensions,annuities, social security and other public pensions, or income derived by artistes, athletes, students, trainees or teachers?Services,Pensions, (c)(1)(iv)Was the position that income of an individual is resourced (for purposes of applying the foreign tax credit limitation) under a treaty provision relating to elimination of double taxation?Reg. (c)(1)(v)NoFTC Limit ResourcingWas the position that a nondiscrimination provision of a treaty allows the making of an election under section 897(i)?

5 Reg. (c)(1)(vi), -1(b)(1)No897(i) ElectionYesWas the position that a Social Security Totalization Agreement or a Diplomatic or Consular Agreement reduces or modifies the taxation of income derived by the taxpayer?Reg. (c)(1)(vii)Was the position that a treaty exempts the taxpayer from the excise tax imposed by section 4371?Totaliz'n AgmtNoWas the taxpayer an individual?Reg. (c)(1)(viii)Was the person claiming the Treaty-Based Return position an insured, as defined in section 4372(d) (without the limitation therein referring to section 4371(1)), or a or foreign broker ofinsurance risks?4371 Excise TaxInsured or Broker YesWould reporting of the treaty position be required to be made by foreign insurers or reinsurers on a form 720 on a quarterly basis?

6 NoNoReg. (c)(1)(viii)(A)Reg. (c)(1)(viii)(B)Rptg Req'd QtrlyNoYesIndividualReg. (c)(2)Were the payments or income items, received by the individual during the course of the taxable year less than or equal to $10,000 in the aggregate?Was the treatment of the payments or income items mandated by the terms of a closing agreement with the IRS?YesForm 8833 is NOT Not RequiredIncome Items 10kReg. (c)(2), clause 1 NoClosing AgreementReg. (c)(3)YesWas the taxpayer a partner or beneficiary of a partnership, trust, or estate, and has the partnership, trust, or estate disclosed on its information Return the treaty position ?

7 P'ship, Trust, EstateReg. (c)(4)YesWas the taxpayer a withholding agent and was the treaty position with respect to the performance of the taxpayer's withholding functions?WithholdingAgentNoReg. (c)(5)YesWas the position that a nondiscrimination provision of a treaty precludes the application of any otherwise applicable Code provision?Nondiscim'nReg. (b)(1) form 8833 is specificallyrequired to be the position that a treaty reduces or modifies the taxation of gain or loss from the disposition of a United States real property interest?Was the position that a treaty exempts a foreign corporation from (or reduces the amount of tax with respect to) the branch profits tax (section 884(a)) or the tax on excess interest (section 884(f)(1)(B))?

8 USRPIReg. (b)(2)NoBPT / ExcessInterestReg. (b)(3)Was the position that a treaty exempts from tax, or reduces the rate of tax on, interest or dividends paid by a foreign corporation that are from sources within the by reason of section 861(a)(2)(B) or section 884(f)(1)(A)?NoUS Source Div. / Fgn CorpReg. (b)(4)(i)NoNoYesYesYesWas the payment properly reported to the IRS on a form 1042-S?Reported on 1042-SWas the foreign person any of the following: (1) A controlled foreign corporation in which the person is a shareholder; (2) A foreign corporation that is controlled within the meaning of section 6038 by the person; (3) A foreign shareholder of the person that is 25-percent owned within the meaning of section 6038A by the foreign shareholder; or (4) A foreign related party, as defined in section6038A(c)(2)(B), to the person?

9 Certain Related PersonsYesReg. (b)(4)(ii)(A)-1(c)(6)(i)-1(c)(8)(i)NoFor m 8833 is specificallyrequired to be SpecificallyRequiredReg. (b)(4)(ii)(B)YesNoDid the applicable treaty contain a limitation on benefits article?LOB ArticleReg. (b)(4)(ii)(C)YesWas the beneficial owner related to the person obligated to pay the income within the meaning of sections 267(b) and 707(b)?BO is Relatedto PayorReg. (b)(4)(ii)(C)(1)YesDid the income exceed$500,000 for the taxable year?>500kReg. (b)(4)(ii)(C)(1)NoNoDid the treaty impose any other conditions for the entitlement of treaty benefits, for example as a part of the interest, dividends, or royalty article?

10 Other treaty ConditionsYesReg. (b)(4)(ii)(D)Were the amounts received by a related party, within the meaning of section 6038A(c)(2), from a withholding agent that is a reporting corporation, within the meaning of section 6038A(a)?NoYesYesNoWas the income received by a State (including political subdivision or local authority)?Rec'd By a StateReg. (b)(4)(ii)(C)(1) form 8833 is NOT NotRequiredForm 8833 isrequired to be Reg. (a)(1)(i) provides:Treas. Reg. (b) provides in part:Except as provided in paragraph (c) of this section, if a taxpayer takes a Return position that any treaty of the United States (including, but not limited to, an income tax treaty , estate and gift tax treaty , or friendship, commerce and navigation treaty ) overrules or modifies any provision of the Internal Revenue Code and thereby effects (or potentially effects) a reduction of any tax incurred as any time, the taxpayer shall disclose such Return position on a statement (in the form required in paragraph (d) of this section)