Form 8833 and Form 8840 address different tax-residency questions. One concerns disclosure of certain treaty-based return positions; the other concerns a closer-connection exception associated with the substantial presence test. Neither is a general form for opting out of U.S. tax reporting.
Start with the residency analysis
Before choosing a form, establish the calendar-year facts: U.S. presence, immigration status, tax home, connections abroad and the treaty, if any, on which a position depends. A foreign passport, an overseas address or foreign tax payment does not answer every U.S. residency question.
The substantial presence calculation generally considers days across multiple years, subject to specific rules and exclusions. Keep an actual travel record rather than reconstructing the answer from the number of nights remembered. Excluded days and immigration facts require their own documentation.
Different questions, different records
| Form | Main question | Useful evidence |
|---|---|---|
| 8833 | Does a treaty-based return position require disclosure? | Relevant treaty provisions, domestic-law analysis, residency facts and return position |
| 8840 | Does the closer-connection exception apply? | Day-count records, foreign tax-home facts and personal, business and financial connections |
The IRS Form 8833 resource explains the treaty-disclosure purpose. The Form 8840 resource addresses the closer-connection statement. Review the current instructions and any applicable exceptions before treating either as mandatory or sufficient in a particular case.
Build a shared factual record
Create a calendar of arrivals and departures with supporting travel records. List where you worked, maintained a home, kept family and business relationships, and filed tax returns. Record changes during the year, including immigration applications or status changes, rather than presenting the year as a single unchanging situation.
For every assertion, identify the supporting document and any conflicting evidence. A lease abroad and a long-term U.S. home may both be relevant. Showing only favorable facts can leave the analysis incomplete. Counsel needs the full picture to evaluate the applicable rules.
Do not interchange the forms
A treaty position requires examination of the actual treaty and the interaction with U.S. law. A closer-connection position requires its own eligibility review. The filing of one form does not automatically satisfy the other form’s purpose or resolve all resulting reporting questions.
For example, a person considering a treaty residency position may still need to examine income sourcing, return filing and information reporting separately. Likewise, an individual considering a closer-connection claim should not assume that an overseas home alone establishes eligibility. The decision turns on the rules and facts, not the preferred tax result.
Check the return and state-tax implications
Once the federal position is analyzed, identify the associated return, disclosures and filing instructions. Federal residency and California residency are separate questions. A federal exception or treaty position should not be used as a shortcut for deciding California residence or California-source income.
Retain the final analysis, filed forms and submission evidence with the travel record. If the facts change in a later year, repeat the analysis rather than copying last year’s answer without review.
Our international tax team can evaluate treaty, residency and reporting questions together. Bring the travel chronology, immigration information and relevant tax returns to make the consultation specific.
Primary sources
IRS Form 8833 resource; IRS Form 8840 resource; IRS substantial presence test. Source checked October 1, 2026; general information only.
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Sam Landis is a Beverly Hills IRS tax attorney specializing in IRS collection defense, audit representation, and international tax compliance for foreign nationals and US expats.