Form 8838 Consent to Extend the Time to Assess Tax Under Section 3

Form

8838

(Rev. February 2007)

Consent To Extend the Time To Assess Tax Under
Section 367—Gain Recognition Agreement

Department of the Treasury
Internal Revenue Service

©

OMB No. 1545-1395
Attachment
Sequence No.

Attach to your income tax return.

Name(s) of consenting taxpayer(s)

145

Identifying number (see instructions)

Social security number of spouse (only if a joint
income tax return was filed)

Number, street, and room or suite no. (If a P.O. box, see instructions.)

City or town, state, and ZIP code

The taxpayer(s) listed above and the Commissioner of Internal Revenue, pursuant to the regulations under section 367, agree to
the following:
1 The amount of any federal income tax due relating to the transfer described in item 5, below, on any income tax return made
by or for the above taxpayer(s) for the tax year ended
,
,
, may be
month
day
year
assessed at any time on or before

,
month

,
day

, (expiration date—see instructions).
year

2

This consent establishes an extended period for assessing tax. The expiration of the extended period may be suspended
or otherwise affected by the operation of law in the same manner as the original period. For example, if a notice of deficiency
in tax covered by this consent is issued, the period for assessing tax will not end prior to the end of the suspension period
provided for by section 6503(a), plus any time that remains in the assessment period, as extended, at the time the suspension
takes effect. Under no circumstances will this consent reduce the period of time otherwise provided by law for making an
assessment.

3
4

The consenting taxpayer(s) may file a claim for credit or refund for the tax assessed by reason of this consent within 6
months after the period ends for assessing tax established by this consent.
The amount of any deficiency assessment covered by this consent will be limited to the amount of any federal income tax
due relating to the recognition of gain on the transfer described in item 5, including any penalties, additions to tax, and
interest attributable thereto and consequential changes to other items based on that adjustment.

5

Complete the following information (see instructions):

a Date of transfer
b Description of the property transferred

c Name of transferee and identifying number, if any

Under penalties of perjury, I declare that I have examined this consent, including accompanying statements and schedules, and to the best of my knowledge and belief,
it is true, correct, and complete. A signed consent, properly completed in accordance with this form and its instructions, is deemed to have been executed by the
Commissioner of Internal Revenue.

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Signature of consenting taxpayer (see instructions)

©

Date

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Signature of spouse (complete only if a joint return is filed)

©

Date

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Taxpayer’s representative sign here

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Date

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Corporate officer(s) sign here

©

Date

For Paperwork Reduction Act Notice, see the instructions.

Cat. No. 20471F

Form

8838

(Rev. 2-2007)

Form 8838 (Rev. 2-2007)

Page

2

Section references are to the Internal Revenue Code unless
otherwise noted.

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.

Purpose of Form

Line 5

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, 1.367(a)-8, and 1.367(a)-8T. 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)-8T(d)(8).

If Form 8838 is filed by a successor U.S. transferor because of a
transaction described in Temporary Regulations section
1.367(a)-8T(e), the information required in lines a, b, and c refers
to the initial transfer.

General Instructions

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)(2)(i) and 1.367(a)-3T(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

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
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
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.