When you say sec 6114 waives the requirement in your case, I assume you mean the regulation 26 CFR § 301.6114-1(b) as the statute doesn't have any waivers in it.
If you are covered under a waiver in the reg then I you may be good. See below. The regulation is very authoritative if it clearly applies to you.
How confident you need to be is, in and of itself, not a simple matter. Take a look at
https://www.irs.gov/pub/irs-utl/2018ntf-what-is-your-authority-for-that.pdf
slide 7+ ("Reduction of the Understatement") ... part of the complexity is that you need to understand if you are taking an "undisclosed position" or if you are disclosing. If you filed the 8833 I'd say you were certainly disclosing. But if there is an exception, then is noting the treaty deduction on the return as you suggest sufficient? I don't know. It might not be because the IRS can't really read all such comments unless a human being audits the return. That's what the 8833 is for -- putting the IRS on notice and their computers can look out for 8833's that look suspicious.
This table is from a 2007 article so it might be outdated but you get the idea. Taxpayers are held to a lesser standard than professionals are. https://www.journalofaccountancy.com/issues/2007/oct/accountingforuncertainty.html
|
Exhibit 1
|
Tax Reporting Inclusion Thresholds |
|
| |
|
| |
|
2008 |
Pre-2008 |
|
| Applies to: |
Auditors |
Tax Practitioners |
Tax Practitioners |
Taxpayers |
| Applicable Standards and Threshold |
More-Likely-Than-Not |
More-Likely-Than-Not |
Realistic Possibility |
(1) Substantial Authority
(2) Reasonable Basis |
| Threshold Probability |
Over 50% |
Over 50% |
Over 33% |
Not over 50% but more than a reasonable basis (perhaps 25%) |
| Threshold Source |
FIN 48 |
IRC § 6694(a) (SSTS and Cir. 230 likely to change) |
(1) IRC § 6694(a)
(2) SSTS no. 1
(3) Circular 230 § 10.34 |
(1) Reg. § 1.6662-4(d)
(2) Reg. § 1.6662-3(b) |
| Consequence for Not Meeting Threshold |
Potential legal and professional liablity |
(1) Greater of $1,000 or 50% of income derived
(2) Unable to sign return without disclosure (SSTS no.1 and Circular 230) |
(1) $250 per occurrence penalty (§ 6694(a))
(2) Unable to sign return without disclosure (SSTS no.1 and Circular 230) |
20% penalty on the understatement of tax |
|
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