Updated October 16, 2026. Quick answer: Form 8833 is the treaty-based return position disclosure. The instructions say “Generally, a taxpayer who takes a treaty-based return position must disclose that position, unless reporting is specifically waived.” It is attached to your tax return, with a separate form for each position. The form warns that “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)”.
What Form 8833 is and who must file
The form’s title is “Treaty-Based Return Position Disclosure”, and the header adds “Attach to your tax return.” “Attach a separate Form 8833 for each treaty-based return position taken.”
The instructions give the purpose: “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 is not one-time: “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.”
On who files: “Generally, a taxpayer who takes a treaty-based return position must disclose that position, unless reporting is specifically waived.” “See Exceptions from reporting below.”
Publication 519, the guide for nonresident and dual-status filers, states the rule from the taxpayer’s side: “If you claim treaty benefits that override or modify any provision of the Internal Revenue Code, and by claiming these benefits your tax is, or might be, reduced, you must attach a fully completed Form 8833 to your tax return.”
Key dollar figures at a glance
The dollar figures that decide the penalty and the disclosure threshold are collected here.
| Item | As printed |
|---|---|
| Penalty on the form | “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)” |
| Publication 519 exception | “The payments or items of income that are otherwise required to be disclosed total no more than $10,000.” |
| Publication 519 residency trigger | “You receive payments or income items totaling more than $100,000 and you determine your country of residence under a treaty and not under the rules for residency discussed in chapter 1.” |
What counts as a treaty-based return position
The form defines the term: “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.”
The word treaty is broad: “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.”
The instructions list positions where reporting is specifically required, with a caution: “Note that this is not an exhaustive list of all positions that are reportable on a Form 8833”. A selection of the printed list:
| Item | Position specifically required to be reported, as printed |
|---|---|
| 1 | “That a treaty reduces or modifies the taxation of gain or loss from the disposition of a U.S. real property interest;” |
| 2 | “That a treaty reduces or modifies the branch profits tax (section 884(a))” |
| 3 | “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;” |
| 4 | “That a treaty alters the source of any item of income or deduction (unless the taxpayer is an individual);” |
| 5 | “That a treaty grants a credit for a foreign tax which is not allowed by the Code;” |
| 6 | “That the residency of an individual is determined under a treaty and apart from the Code.” |
Foreign tax credit questions around these positions are discussed on the Form 1116 page, and the information-return side of foreign accounts is compared on the FBAR versus Form 8938 page.
The penalty, as the form prints it
The warning sits at the top of the form: “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).”
Publication 519 states the individual version: “If you are required to report the treaty benefits but do not, you may be subject to a penalty of $1,000 for each failure.” The two sources use the same $1,000 figure for the base penalty, and the form adds the higher amount for a C corporation.
Exceptions from disclosure
The form instructions introduce the waiver: “Regulations section 301.6114-1(c) waives reporting on a Form 8833 for certain treaty-based return positions.” They also warn “In some instances, the waiver narrowly applies to exempt from reporting a treaty position that is specifically reportable, and thus careful review of the regulations is advised.” The instructions list positions for which reporting is waived, and the first items are:
| Item | Reporting waived, as printed in the form instructions |
|---|---|
| a | “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;” |
| b | “That a Social Security Totalization Agreement or Diplomatic or Consular Agreement reduces or modifies the income of a taxpayer;” |
Publication 519 has its own short list. It opens with “Exceptions. You do not have to file Form 8833 for any of the following situations.” A selection of the items on it:
| Item | Publication 519 exception, as printed |
|---|---|
| 1 | “You claim a reduced rate of withholding tax under a treaty on interest, dividends, rent, royalties, or other FDAP income ordinarily subject to the 30% rate.” |
| 2 | “You claim a reduction or modification of taxation of income under an International Social Security Agreement or a Diplomatic or Consular Agreement.” |
| 3 | “The payments or items of income that are otherwise required to be disclosed total no more than $10,000.” |
Publication 519 filing requirements and the dual-resident rule
Publication 519 lists the situations it calls the more common ones: “You must file a U.S. tax return and Form 8833 if you claim any of the following treaty benefits.”
| Item | Publication 519 filing requirement, as printed |
|---|---|
| 1 | “You claim a reduction or modification in the taxation of gain or loss from the disposition of a U.S. real property interest based on a treaty.” |
| 2 | “You claim a credit for a specific foreign tax for which foreign tax credit would not be allowed by the Internal Revenue Code.” |
| 3 | “You receive payments or income items totaling more than $100,000 and you determine your country of” residence “under a treaty and not under the rules for residency discussed in chapter 1.” |
The dual-resident taxpayer has a separate box on the form. The instructions define the term: “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.” The filing mechanics follow, for a dual-resident taxpayer who is eligible to be treated as a resident of the foreign country under the treaty and chooses to claim benefits as a resident of that country: “you must file Form 1040-NR, U.S. Nonresident Alien Income Tax Return, with Form 8833 attached.”
Filling in the form, and where to file it
The line-by-line questions, as printed:
| Line | As printed on the form |
|---|---|
| Line 1 | “Enter the specific treaty position relied on:” with boxes for the treaty country and the article(s) |
| Line 2 | “List the Internal Revenue Code provision(s) overruled or modified by the treaty-based return position” |
| Line 4 | “List the provision(s) of the limitation on benefits article (if any) in the treaty that the taxpayer relies on to qualify for benefits under the treaty” |
| Line 5 | “Is the taxpayer disclosing a treaty-based return position for which reporting is specifically required pursuant to Regulations section 301.6114-1(b)?” |
| Line 6 | “Explain the treaty-based return position taken. Include a brief summary of the facts on which it is based.” |
Line 6 applies broadly: “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).”
Where it goes: “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 named in the instructions. For people living outside the country, the tax-planning side is covered on the 401(k) and IRA withdrawals abroad page.
The edition read for this page is Form 8833 (Rev. December 2022), which includes its instructions in the same file, and Publication 519 for 2025. These are the revisions irs.gov served when they were read on 2026-10-16. A later revision can change the penalty wording and the list of waived positions, so check the revision printed on the form you are filing.
Common mistakes
- Assuming one form covers every treaty claim. The instructions require a separate form for each treaty-based return position taken, and the form is required annually.
- Relying on a waiver without reading the regulation. The instructions warn that careful review of the regulations is advised because a waiver can narrowly apply to exempt a position that is specifically reportable.
- Leaving line 6 blank because the position is not on the specifically-required list. The instructions say all taxpayers taking a treaty-based return position must provide the line 6 information unless reporting is waived.
Related: Form 1116, FBAR versus Form 8938, 401(k) and IRA withdrawals while living abroad, and retiring abroad financial checklist.
Sources
- Form 8833 (Rev. December 2022), Treaty-Based Return Position Disclosure, with instructions: https://www.irs.gov/pub/irs-pdf/f8833.pdf
- Publication 519 (2025), U.S. Tax Guide for Aliens: https://www.irs.gov/pub/irs-pdf/p519.pdf
Read from the IRS documents linked above on October 16, 2026. General information, not tax advice. Your own facts decide the outcome, and a preparer, the account provider or the IRS is the right place to confirm anything consequential.