Need To File 8833?

Hi,

I'm here looking for reassurance more than anything. Briefly, I'm a UK citizen and UK resident.  I have a 401k from a while ago.  Started taking withdrawals in 2018.  Had already filed a W-8BEN with Fidelity claiming 0% withholding based on treaty.  Despite that, Fidelity withheld 30% tax from the first couple of withdrawals.  Cue lots of arguing and correspondence - I won't bore you unless someone is really interested.

So, now I have my 1042-S forms from Fidelity and I'm ready to file a 1040NR to reclaim the tax.  It looks pretty simple and, from the "how to file a 1040NR" document, there's a simplified procedure if you're just claiming a refund.  My 1040NR will obviously quote the US-UK treaty Article 17, in Schedule OI.

I've read much about also needing to file an 8833 to invoke a tax treaty, but I believe my situation is exempt. In the notes for 8833 it says in the Exceptions from reporting section:
Positions for which reporting is waived include, but are not limited to, the following

• 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;

The bolding of "pensions" is mine.  On the basis of that statement, I don't intend filing an 8833.  Am I right not to do so?

Thanks.

I filed an 8833 one year, then on the advice of a US based tax attorney I stopped - we read the same text you did. So I don't. Others think you should. I believe the 8833 is when you take an unusual position and as you pointed out pensions are specifically exempt. Others who wil want to charge you to file these forms will undoubtedly disagree...

I think this is pretty clear:

https://www.irs.gov/individuals/international-taxpayers/claiming-tax-treaty-benefits

and this:

https://help.taxesforexpats.com/article/537-uk-isa-sipp-foreign-trusts-on-us-tax-return

<<We are often asked this question (is my SIPP a foreign grantor trust), as other tax preparers (often in the U.K) are notorious for preparation of redundant forms to justify high fees they charge for US tax returns. Ironically, along with forms 3520-a they commonly file form 8833 explaining that US retirement plans are IRS-qualified, although it has been determined that this obvious fact does not need treaty-position disclosure.>>

That's with regards to SIPPs but I would suppose the same applies to other types of pensions.

Hi,

I'm here looking for reassurance more than anything. Briefly, I'm a UK citizen and UK resident.  I have a 401k from a while ago.  Started taking withdrawals in 2018.  Had already filed a W-8BEN with Fidelity claiming 0% withholding based on treaty.  Despite that, Fidelity withheld 30% tax from the first couple of withdrawals.  Cue lots of arguing and correspondence - I won't bore you unless someone is really interested.

So, now I have my 1042-S forms from Fidelity and I'm ready to file a 1040NR to reclaim the tax.  It looks pretty simple and, from the "how to file a 1040NR" document, there's a simplified procedure if you're just claiming a refund.  My 1040NR will obviously quote the US-UK treaty Article 17, in Schedule OI.

I've read much about also needing to file an 8833 to invoke a tax treaty, but I believe my situation is exempt. In the notes for 8833 it says in the Exceptions from reporting section:
Positions for which reporting is waived include, but are not limited to, the following

• 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;

The bolding of "pensions" is mine.  On the basis of that statement, I don't intend filing an 8833.  Am I right not to do so?

Thanks.

The IRS frequently process returns incorrectly. An 8833 conforms that an individual is electing to claim the benefits of a treaty.  It also explains the treaty position to the IRS. Consequently, it can reduce the chances of IRS processing mistakes. The pension income described is of course UK taxable.