Missed 3-year deadline for filing treaty based disclosure. What to do?

[elgoog]

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 needed 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, my CPA missed it and I am now too late. Since I'm already out of the 3 year window for amendments, do I have any other options or do I just pay the double tax?

Thank you.

[nelsona]

You should still attach the 8833 that you would have prepared back then, each year that you sell any of the investments that were deemed sold, using as your cost basis the value determined in the year you moved.

While RP-10-19 outlines a convenient way for both the taxpayer and the IRS to track this provision, the treaty itself gives you that right in any event. So, providing what you should have provided in 2021 (which you would have to do when you sold in any event) will be sufficient for IRS to accept your ACB for determining your taxable gains.

[elgoog]

I see. Would I just use ARTICLE XIII (7) on the 8833 whenever I do sell the securities?

[nelsona]

you should still follow the RP, and prepare the documentation (including the original 8833) you would have made at the time of the election. Then simply refer to the article when selling each investment on your deemed disposition list.

[elgoog]

Sounds good. Thank you for the help, Nelsona.