Form 8838 (Rev. 12-2012)
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 and
its instructions, such as legislation enacted after they were published,
go to www.irs.gov/form8838.
Purpose of Form
Form 8838 must be used for gain recognition agreements under
sections 367(a) and 367(e)(2).
For more information about transfers of stock and securities to a
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
a domestic subsidiary into a foreign parent under section 332, see
Regulations section 1.367(e)-2.
Consent to extend the time to assess tax. Although you are not
required to extend the period of limitations under the terms and
conditions provided in this form, failure to do so in a timely manner will
invalidate the gain recognition agreement and the transfer of property
will be treated as a taxable exchange as required by Regulations
sections 1.367(a)-8(c) and 1.367(a)-8(j).
Who Must File
A United States transferor must file Form 8838 (or a similar statement) if
it enters into a gain recognition agreement pursuant to section 367(a)
with respect to the transferred property.
For purposes of section 367(a), the term “United States transferor”
includes:
• A citizen or resident of the United States.
• A domestic corporation.
• A U.S. citizen, resident, or domestic corporation that is directly or
indirectly a partner in a domestic or foreign partnership that transfers
property to a foreign corporation. See Temporary Regulations section
1.367(a)-1T(c)(3).
• Any estate or trust (other than a foreign estate or trust under section
7701(a)(31)).
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
1.367(a)-3(e).
The domestic corporation and distributee foreign corporation must
file Form 8838 (or a similar statement) if a gain recognition agreement
under section 367(e)(2) is entered into.
How To File
Attach Form 8838 to the U.S. transferor’s income tax return for the tax
year the transfer is made.
Specific Instructions
Identifying Number
The identifying number of an individual is the social security number.
For all other taxpayers, it is the employer identification number.
Address
Include the suite, room, or other unit number after the street address. If
the Post Office does not deliver mail to the street address and the
transferor has a P.O. box, show the box number instead.
Line 1
The correct expiration date to be entered on line 1 depends on the type
of transaction.
Transfers under section 367(a). A U.S. transferor must agree to
extend the statute on transfers described in section 367(a) for at least 8
tax years following the tax year of the transfer.
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
years after the date on which all items of property distributed to the
foreign distributee are no longer used in a trade or business within the
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
year of the last distribution of any item of property included in the
liquidation.
Line 5
If Form 8838 is filed by a successor U.S. transferor because of a
transaction described in Regulations section 1.367(a)-8(k), the
information required in lines a, b, and c refers to the initial transfer.
Signature
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
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. Also see
Regulations section 1.367(a)-(8)(d)(3).
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
power of attorney. Form 2848, Power of Attorney and Declaration of
Representative, provides the authority on line 5, Acts authorized. Attach
a copy of Form 2848 with Form 8838.
Fiduciaries. If you are 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.
Paperwork Reduction Act Notice
We ask for the information on this form to carry out the Internal
Revenue laws of the United States. You are required to give us the
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.
You are not required to provide the information requested on a form
that is subject to the Paperwork Reduction Act unless the form displays
a valid OMB control number. Books or records relating to a form or its
instructions must be retained as long as their content may become
material in the administration of any Internal Revenue law. Generally,
tax returns and return information are confidential, as required by Code
section 6103.
The time needed to complete and file this form will vary depending
on individual circumstances. The estimated burden for individual
taxpayers filing this form is approved under OMB control number
1545-0074 and is included in the estimates shown in the instructions for
their individual income tax return. The estimated burden for all other
taxpayers who file this form is shown below.
Recordkeeping . . . . . . . . . . . . 4 hr., 18 min.
Learning about the law or the form . . . . . . 1 hr., 53 min.
Preparing the form . . . . . . . . . . . 2 hr., 2 min.
Copying, assembling, and sending
the form to the IRS . . . . . . . . . . . . . 0 min.
If you have comments concerning the accuracy of these time
estimates or suggestions for making this form simpler, we would be
happy to hear from you. See the instructions for the tax return with
which this form is filed.
