When To Report Form 8833 To IRS

[elgoog]

I moved to the US from Canada in 2021 and at that time, I owned some stocks and digital assets. As a result, I was subject to deemed disposition rules and paid the appropriate tax to the CRA.

I became a US tax resident in 2022. I sold some of these stocks in 2023 and I now need to report the gain or loss to the IRS. I assume I need to use Form 8833 to take a treaty based position as per https://www.irs.gov/pub/irs-drop/rp-10-19.pdf to account for my adjusted basis. However, reading that makes me feel like I should have filed Form 8833 in my first year as a US tax resident.

1. When am I supposed to file Form 8833 (Treaty based return position disclosure)?
2. Which article of the treaty am I supposed to use in this disclosure?

Thank you.

[nelsona]

1. It should have been included on your 2021 1040 (if you chose to file a 1040 that year), or definitely on 2022 return.
2. As the Rev Proc points out, the treaty article is XIII(7).

[elgoog]

Thank you for the response, Nelsona. I filed a 1040 for the first time in 2022 so I guess it should have been included then. I used an accountant to file my taxes in 2022 and had given him this information but I am unsure as to whether he filed it. Do you know if I can amend my 2022 return to file this form Thank you again for your help.

[elgoog]

Seems like there's a penalty of $1000 for failing to file this form on time so I will have to lay out all the facts in my amended return

[nelsona]

the penalty for not filing 8833 is only for a very limited types of elections, which this isn't one of them.