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When the benefits of a tax treaty are used to justify non payment of a tax or the non filing of a return, the taxpayer is required to file Form 8833 - Treaty Based Returns Position Disclosure.
When a taxpayer elects to take a position that is contrary to any provisions of the U.S. tax law that is based on the provisions of a treaty with another country, the taxpayer is required to file Form 8833 to disclose the treaty country, the applicable articles of the treaty that apply, the applicable sections of the IRC and an explanation of the position taken.
This form should be attached to the taxpayer's regular tax return (Form 1040, 1040-NR, 1120, 1120F, 1065, 1041, etc.).
It should be filed as a part of the taxpayer's regular tax return, but if a return is not otherwise required, this form should be sent to the IRS Center where a return would otherwise have been filed.
The IRS estimate of the average time required to prepare this form is about two hours. It's likely to take quite a bit longer for a preparer who is not familiar with the applicable tax law and treaty provisions.
The applicable tax code section (IRC 6114) and the instructions to this form do not explicitly include mention of any specific penalties for a failure to file the form. However, where the benefits of a treaty that overrides a provision of the IRC are relied on, the IRS can deny such benefits without a disclosure of the applicable treaty provisions.
This form may be required to justify not filing the quarterly Form 720 for the excise tax on insurance premiums paid to foreign insurance companies if the excise tax is not required under a treaty -- such as with Switzerland.
Copies of IRS Tax Forms and Instructions are available from their web site at