Form 8838 - Consent To Extend The Time To Assess Tax Under Section 367 - Gain Recognition Agreement Page 2
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Form 8838 (Rev. 12-2012)
Page
General Instructions
Liquidations under section 367(e)(2). Domestic liquidating
corporations and foreign distributee corporations must agree to extend
the statute for liquidations described in section 367(e)(2) for at least 3
Section references are to the Internal Revenue Code unless otherwise
years after the date on which all items of property distributed to the
noted.
foreign distributee are no longer used in a trade or business within the
Future Developments
United States. However, the period of extension may not exceed 13
years from the filing of the original U.S. income tax return for the tax
For the latest information about developments related to Form 8838 and
year of the last distribution of any item of property included in the
its instructions, such as legislation enacted after they were published,
liquidation.
go to
Line 5
Purpose of Form
If Form 8838 is filed by a successor U.S. transferor because of a
Form 8838 must be used for gain recognition agreements under
transaction described in Regulations section 1.367(a)-8(k), the
sections 367(a) and 367(e)(2).
information required in lines a, b, and c refers to the initial transfer.
For more information about transfers of stock and securities to a
Signature
foreign corporation described in section 367(a), see Regulations
sections 1.367(a)-3 and 1.367(a)-8. For information about a liquidation of
Joint returns. If this consent is made for any year for which a joint
a domestic subsidiary into a foreign parent under section 332, see
income tax return is filed, both husband and wife must sign Form 8838
Regulations section 1.367(e)-2.
unless one, acting under a power of attorney, signs as an agent for the
other.
Consent to extend the time to assess tax. Although you are not
required to extend the period of limitations under the terms and
Corporation. If the taxpayer is a corporation, a responsible officer of the
conditions provided in this form, failure to do so in a timely manner will
corporation must sign the return and show his or her title. Affiliated
invalidate the gain recognition agreement and the transfer of property
groups filing a consolidated income tax return should see Regulations
will be treated as a taxable exchange as required by Regulations
section 1.1502-77 for rules about a common parent signing as an agent
sections 1.367(a)-8(c) and 1.367(a)-8(j).
for subsidiaries and alternative agents for affiliated groups. Also see
Regulations section 1.367(a)-(8)(d)(3).
Who Must File
Attorney or Agent. If you are an attorney or agent of the taxpayer(s),
you may sign this consent if that action is specifically authorized by a
A United States transferor must file Form 8838 (or a similar statement) if
power of attorney. Form 2848, Power of Attorney and Declaration of
it enters into a gain recognition agreement pursuant to section 367(a)
Representative, provides the authority on line 5, Acts authorized. Attach
with respect to the transferred property.
a copy of Form 2848 with Form 8838.
For purposes of section 367(a), the term “United States transferor”
Fiduciaries. If you are acting as a trustee and you sign this consent,
includes:
you must attach a copy of Form 56, Notice Concerning Fiduciary
• A citizen or resident of the United States.
Relationship, and the trust instrument. If you are acting as an executor,
• A domestic corporation.
administrator, or other fiduciary of an estate, you must attach a copy of
Form 56, and the certified copy of letters of testamentary or court
• A U.S. citizen, resident, or domestic corporation that is directly or
certificate certifying as to the present status of the estate, including the
indirectly a partner in a domestic or foreign partnership that transfers
name of the present fiduciary and capacity.
property to a foreign corporation. See Temporary Regulations section
1.367(a)-1T(c)(3).
Bankruptcy case under Title 11, United States Code. The trustee
must sign the consent in a case under Title 11 if the trustee has
• Any estate or trust (other than a foreign estate or trust under section
possession of, or holds title to, all or substantially all of the property or
7701(a)(31)).
business of a corporation.
In the case of an exchange described in section 361(a) or 361(b) that
is subject to section 367(a)(5), see Regulations sections 1.367(a)-8(f) and
Paperwork Reduction Act Notice
1.367(a)-3(e).
The domestic corporation and distributee foreign corporation must
We ask for the information on this form to carry out the Internal
file Form 8838 (or a similar statement) if a gain recognition agreement
Revenue laws of the United States. You are required to give us the
under section 367(e)(2) is entered into.
information. We need it to ensure that you are complying with these
laws and to allow us to figure and collect the right amount of tax.
How To File
You are not required to provide the information requested on a form
that is subject to the Paperwork Reduction Act unless the form displays
Attach Form 8838 to the U.S. transferor’s income tax return for the tax
a valid OMB control number. Books or records relating to a form or its
year the transfer is made.
instructions must be retained as long as their content may become
Specific Instructions
material in the administration of any Internal Revenue law. Generally,
tax returns and return information are confidential, as required by Code
section 6103.
Identifying Number
The time needed to complete and file this form will vary depending
The identifying number of an individual is the social security number.
on individual circumstances. The estimated burden for individual
For all other taxpayers, it is the employer identification number.
taxpayers filing this form is approved under OMB control number
Address
1545-0074 and is included in the estimates shown in the instructions for
their individual income tax return. The estimated burden for all other
Include the suite, room, or other unit number after the street address. If
taxpayers who file this form is shown below.
the Post Office does not deliver mail to the street address and the
Recordkeeping
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. 4 hr., 18 min.
transferor has a P.O. box, show the box number instead.
Learning about the law or the form .
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. 1 hr., 53 min.
Line 1
Preparing the form .
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2 hr., 2 min.
The correct expiration date to be entered on line 1 depends on the type
Copying, assembling, and sending
of transaction.
the form to the IRS .
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0 min.
Transfers under section 367(a). A U.S. transferor must agree to
If you have comments concerning the accuracy of these time
extend the statute on transfers described in section 367(a) for at least 8
estimates or suggestions for making this form simpler, we would be
tax years following the tax year of the transfer.
happy to hear from you. See the instructions for the tax return with
which this form is filed.
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