Territory form example should address non-bona-fide residents

Number
202346018
Outcome
Advice
Document type
Chief Counsel Advice
IRS subject
Items Not Specified in Sections 861 or 862
Topics
Code sections
§ 863
Ruling dated
June 1, 2023
Publicly released
November 17, 2023

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This page covers legal advice the IRS Office of Chief Counsel wrote for IRS staff, issued in 2023, which can't be cited as precedent. Ask about your situation and see what the current Code and IRS guidance say, with citations.

Not precedent. Under 26 U.S.C. § 6110(k)(3), this written determination may not be used or cited as precedent. It is advice from the IRS Office of Chief Counsel to IRS personnel on the facts they presented, and identifying details were redacted by the IRS before release. The official IRS release (linked on this page as a PDF) is the authoritative source.
About this page: The plain-English summary and ruling snapshot below were written by Ezel based on the official IRS release. The full text is the IRS's own document.
View official IRS release (PDF)

Plain-English summary

Chief Counsel commented on the personal-property instructions for Forms 8689 and 5074. The existing example described source rules for a bona fide resident of a U.S. territory, but such a resident generally would not file those forms. The advice recommended replacing the example with one addressing a U.S. citizen or resident alien who is not a bona fide territory resident. For that taxpayer, gain from selling or disposing of personal property is generally treated as U.S.-source income.

Ruling snapshot

  • Question: How should Forms 8689 and 5074 explain the source of personal-property gain for their likely filers?
  • Outcome: Advice given, use an example involving a non-bona-fide territory resident
  • Key authorities: IRC § 863

Full text (IRS public release)

 ID:         CCA_2023060112473417                           [Third Party Communication:

 UILC:       863.00-00                                      Date of Communication: Month DD, YYYY]

Number: 202346018
Release Date: 11/17/2023
From: --------------------
Sent: Thursday, June 1, 2023 12:47:34 PM
To: --------------------
Cc: -----------------------------------------------------
Bcc:
Subject: Comments to Forms 8689 and 5074


Hi --------,

One additional comment with regards to Forms 8689 and 5074. In the personal
property section, there is a sentence that reads “For example, if you are a bona fide
resident of [a territory], gain from the sale or disposition of personal property is generally
from sources within [that territory].” Given that a bona fide resident of a territory would
not have to file these forms, it may be more helpful to explain what happens in the case
of a non-bona fide resident. Thus, this sentence could be replaced with language along
the lines of “For example, if you are a United States citizen or resident alien and not a
bona fide resident of [territory], gain from the sale or disposition of personal property is
generally treated as U.S. source.”

Best,
-----

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