Territory form example should address non-bona-fide residents
Apply this to your situation
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.
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,
-----
What does the Code say today, for your facts?
This advice was written for IRS staff and cannot be cited. Ezel checks the current Internal Revenue Code and IRS guidance against your situation, with citations.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace