Form 8838-P (12-2017)
Page 2
General Instructions
Section references are to the Internal Revenue Code unless otherwise
noted.
Future Developments
For the latest information about developments related to Form 8838-P
and its instructions, such as legislation enacted after they were
published, go to www.irs.gov/Form8865.
Purpose of Form
To apply the gain deferral method (as described in Temporary
Regulations section 1.721(c)-3T), Form 8838-P must be used for:
• A gain deferral contribution (defined in Temporary Regulations section
1.721(c)-1T(b)(7)), and
• A contribution, that isn’t a gain deferral contribution, of section 721(c)
property (defined in Temporary Regulations section 1.721(c)-1T(b)(15))
to a section 721(c) partnership (defined in Temporary Regulations
section 1.721(c)-1T(b)(14)) within five partnership tax years following the
partnership tax year that includes a gain deferral contribution.
See Temporary Regulations section 1.721(c)-6T(b)(5)(i) through (iii).
For definitions and other information about contributions of property
to a section 721(c) partnership, see Temporary Regulations sections
1.721(c)-1T through 1.721(c)-7T.
Consent to extend the time to assess tax. Although you aren’t required
to extend the period of limitations on assessment of tax under the terms
and conditions provided in this form, for a gain deferral contribution, failure
to do so as required under Temporary Regulations section 1.721(c)-6T(b)(5)
will result in gain recognition. For a contribution, that isn’t a gain deferral
contribution, of section 721(c) property to a section 721(c) partnership,
failure to file this form as required under Temporary Regulations section
1.721(c)-6T(b)(5)(iii) may constitute an acceleration event under Temporary
Regulations section 1.721(c)-4T(b)(2)(i) for a gain deferral contribution that
occurred within five partnership tax years prior to the contribution.
Who Must File
A U.S. transferor must file Form 8838-P in order to apply the gain
deferral method as described in Temporary Regulations section
1.721(c)-3T upon a contribution of section 721(c) property to a
section721(c) partnership.
For purposes of section 721(c), the term “U.S. transferor” includes:
• A citizen or resident of the United States.
• A domestic corporation.
• Any estate or trust (other than a foreign estate or trust under section
7701(a)(31)).
See also Temporary Regulations section 1.721(c)-1T(b)(18)(i).
How To File
Attach Form 8838-P to a U.S. transferor’s income tax return for:
• A gain deferral contribution for the tax year in which the gain deferral
contribution is made and annually as required under Temporary
Regulations section 1.721(c)-6T(b)(5), and
• A contribution, that isn’t a gain deferral contribution, of section 721(c)
property to a section 721(c) partnership for the tax year in which the
contribution is made.
Specific Instructions
Identifying Number
The identifying number of an individual is the social security number. For
all other taxpayers, it’s the employer identification number.
Address
Include the suite, room, or other unit number after the street address. If
the Post Office doesn’t deliver mail to the street address and the
transferor has a P.O. box, show the box number instead.
Line 1a
To apply the gain deferral method upon a gain deferral contribution, a
U.S. transferor must agree to extend the period of limitations as
described in Temporary Regulations section 1.721(c)-6T(b)(5)(i). A U.S.
transferor must also agree to extend the period of limitations under
Temporary Regulations section 1.721(c)-6T(b)(5)(ii). A U.S. transferor
must agree to extend the period of limitations under Temporary
Regulations section 1.721(c)-6T(b)(5)(i) through the close of the eighth
full tax year following the tax year of the contribution, and must agree to
extend the period of limitations under Temporary Regulations section
1.721(c)-6T(b)(5)(ii) through the close of the sixth full tax year following
the tax year of the contribution. A U.S. transferor must also agree to
extend the period of limitations under Temporary Regulations section
1.721(c)-6T(b)(5)(ii) for the subsequent two years through the close of
the sixth full tax year following each such year.
Line 1b
Contributions upon which gain is recognized. A contribution of
section 721(c) property to a section 721(c) partnership, upon which
gain is recognized, made within five partnership tax years following the
partnership tax year that includes a gain deferral contribution, is subject
to Temporary Regulations section 1.721(c)-6T(b)(5)(iii). With respect to
the gain recognized, a U.S. transferor must agree to extend the period
of limitations under Temporary Regulations section 1.721(c)-6T(b)(5)(iii)
through the close of the fifth full tax year following the tax year of the
contribution.
Line 5
If there is more than one section 721(c) property, provide the information
requested on line 5 for each property. For each section 721(c) property,
indicate whether the gain deferral method is being applied.
Line 5c
If the gain deferral contribution is subject to the tiered partnership rules
under Temporary Regulations section 1.721(c)-3T(d), identify all upper-
and lower-tier partnerships.
Signature
In general. The rules for signatures are provided in Temporary
Regulations section 1.721(c)-6T(e).
Joint returns. If this consent is made for any year for which a joint
income tax return is filed, both husband and wife must sign Form
8838-P unless one, acting under a power of attorney, signs as an agent
for the other.
Corporation. If the taxpayer is a corporation, a responsible officer of the
corporation must sign the return and show his or her title. Affiliated
groups filing a consolidated income tax return should see Regulations
section 1.1502-77 for rules about a common parent signing as an agent
for subsidiaries and alternative agents for affiliated groups.
Attorney or Agent. If you’re an attorney or agent of the taxpayer(s), you
may sign this consent if that action is specifically authorized by a power
of attorney. Form 2848, Power of Attorney and Declaration of
Representative, provides the authority on line 5a, Acts authorized.
Attach a copy of Form 2848 to Form 8838-P.
Fiduciaries. If you’re acting as a trustee and you sign this consent, you
must attach a copy of Form 56, Notice Concerning Fiduciary
Relationship, and the trust instrument. If you are acting as an executor,
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
certificate certifying as to the present status of the estate, including the
name of the present fiduciary and capacity.
Bankruptcy case under Title 11, United States Code. The trustee
must sign the consent in a case under Title 11 if the trustee has
possession of, or holds title to all, or substantially all, of the property or
business of a corporation.
