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. 2-2007)
Page
General Instructions
trade or business within the United States. However, the period
of extension may not exceed 13 years from the filing of the
Section references are to the Internal Revenue Code unless
original U.S. income tax return for the tax year of the last
otherwise noted.
distribution of any item of property included in the liquidation.
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 Temporary Regulations section
sections 367(a) and 367(e)(2).
1.367(a)-8T(e), the information required in lines a, b, and c refers
For more information about transfers of stock and securities to
to the initial transfer.
a foreign corporation described in section 367(a), see
Signature
Regulations sections 1.367(a)-3, 1.367(a)-8, and 1.367(a)-8T. For
information about a liquidation of a domestic subsidiary into a
Joint returns. If this consent is made for any year for which a
foreign parent under section 332, see Regulations section
joint income tax return is filed, both husband and wife must sign
1.367(e)-2.
Form 8838 unless one, acting under a power of attorney, signs
Consent to extend the time to assess tax. Although you are
as an agent for the other.
not required to extend the period of limitations under the terms
Corporation. If the taxpayer is a corporation, a responsible
and conditions provided in this form, failure to do so in a timely
officer of the corporation must sign the return and show his or
manner will invalidate the gain recognition agreement and the
her title. Affiliated groups filing a consolidated income tax return
transfer of property will be treated as a taxable exchange as
should see Regulations section 1.1502-77 for rules about a
required by Regulations sections 1.367(a)-8(c) and
common parent signing as an agent for subsidiaries and
1.367(a)-8T(d)(8).
alternative agents for affiliated groups. Also see Regulations
Who Must File
sections 1.367(a)-8(a)(3) and 1.367(a)-8T(a)(3).
Attorney or Agent. If you are an attorney or agent of the
A United States transferor must file Form 8838 (or a similar
taxpayer(s), you may sign this consent if that action is
statement) if it enters into a gain recognition agreement pursuant
specifically authorized by a power of attorney. Form 2848, Power
to section 367(a) with respect to the transferred property.
of Attorney and Declaration of Representative, provides the
For purposes of section 367(a), the term “United States
authority on line 5, Acts authorized. Attach a copy of Form 2848
transferor” includes:
with Form 8838.
A citizen or resident of the United States.
Fiduciaries. If you are acting as a trustee and you sign this
A domestic corporation.
consent, you must attach a copy of Form 56, Notice Concerning
Fiduciary Relationship, and the trust instrument. If you are acting
A U.S. citizen, resident, or domestic corporation that is directly
as an executor, administrator, or other fiduciary of an estate, you
or indirectly a partner in a domestic or foreign partnership that
must attach a copy of Form 56, and the certified copy of letters
transfers property to a foreign corporation. See Temporary
of testamentary or court certificate certifying as to the present
Regulations section 1.367(a)-1T(c)(3).
status of the estate, including the name of the present fiduciary
Any estate or trust (other than a foreign estate or trust under
and capacity.
section 7701(a)(31)).
Bankruptcy case under Title 11, United States Code. The
In the case of an exchange described in section 361(a) or
trustee must sign the consent in a case under Title 11 if the
361(b) that is subject to section 367(a)(5), see Regulations
trustee has possession of, or holds title to, all or substantially all
sections 1.367(a)-8(f)(2)(i) and 1.367(a)-3T(e).
of the property or business of a corporation.
The domestic corporation and distributee foreign corporation
must file Form 8838 (or a similar statement) if a gain recognition
Paperwork Reduction Act Notice
agreement under section 367(e)(2) is entered into.
We ask for the information on this form to carry out the Internal
How To File
Revenue laws of the United States. You are required to give us
Attach Form 8838 to the U.S. transferor’s income tax return for
the information. We need it to ensure that you are complying
the tax year the transfer is made.
with these laws and to allow us to figure and collect the right
amount of tax.
Specific Instructions
You are not required to provide the information requested on a
form that is subject to the Paperwork Reduction Act unless the
Identifying Number
form displays a valid OMB control number. Books or records
relating to a form or its instructions must be retained as long as
The identifying number of an individual is the social security
their content may become material in the administration of any
number. For all other taxpayers, it is the employer identification
Internal Revenue law. Generally, tax returns and return
number.
information are confidential, as required by Code section 6103.
Address
The time needed to complete and file this form will vary
depending on individual circumstances. The estimated burden
Include the suite, room, or other unit number after the street
for individual taxpayers filing this form is approved under OMB
address. If the Post Office does not deliver mail to the street
control number 1545-0074 and is included in the estimates
address and the transferor has a P.O. box, show the box
shown in the instructions for their individual income tax return.
number instead.
The estimated burden for all other taxpayers who file this form is
Line 1
shown below.
Recordkeeping
4 hr., 18 min.
The correct expiration date to be entered on line 1 depends on
the type of transaction.
Learning about the law or the form
1 hr., 53 min.
Transfers under section 367(a). A U.S. transferor must agree to
Preparing the form
2 hr., 2 min.
extend the statute on transfers described in section 367(a) for at
Copying, assembling, and sending
least 8 tax years following the tax year of the transfer.
the form to the IRS
0 min.
Liquidations under section 367(e)(2). Domestic liquidating
If you have comments concerning the accuracy of these time
corporations and foreign distributee corporations must agree to
estimates or suggestions for making this form simpler, we would
extend the statute for liquidations described in section 367(e)(2)
be happy to hear from you. See the instructions for the tax
for at least 3 years after the date on which all items of property
return with which this form is filed.
distributed to the foreign distributee are no longer used in a
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