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Form 8838: Consent To Extend the Time To Assess Tax Under Section 367--Gain Recognition Agreement
IRS Form 8838 is used to provide consent to extend the time to assess tax under Section 367—Gain Recognition Agreement. A U.S. transferor must file this form when entering into a gain recognition agreement, which may require extending the statute for at least 8 tax years.
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IRS Form 8838 - Consent To Extend the Time To Assess Tax Under Section 367--Gain Recognition Agreement
IRS Form 8838 is used to provide consent to extend the time to assess tax under Section 367—Gain Recognition Agreement. A U.S. transferor must file this form when entering into a gain recognition agreement, which may require extending the statute for at least 8 tax years.
Risk Radar
Scan points- 1Failure to file Form 8838 in a timely manner invalidates the agreement, resulting in a taxable exchange.
- 2Filing without attaching Form 8838 to the required U.S. transferor’s income tax return.
- 3Incorrectly stating the identifying number (SSN vs. EIN) for the consenting taxpayer(s).
- 4Not including the suite, room, or other unit number in the address section if applicable.
- 5Failing to specify whether the extension period is required under section 367(a) or 367(e)(2).
Plain English
This form is used by parties involved in large property transfers or corporate liquidations to convince the IRS that they do not need to pay taxes on the transaction immediately. By filing this consent, the parties ask the IRS to grant an extension on when the tax assessment period expires, allowing them time to handle the financial implications of the transfer.
Submission Date
- Filing date: 2012-11-08 00:00:00
- Preparation window: collect IDs, supporting records, and signatures in advance.
- Final review: verify names, dates, and required fields before submission.
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Glossary Terms
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What this form is for
- Use this form when a U.S. transferor enters into a gain recognition agreement pursuant to section 367(a).
- Do not rely on submitting this form if failure to do so in a timely manner will invalidate the gain recognition agreement and treat property as taxable.
- Check Form 2848 instead when an attorney or agent signs the consent and needs to provide authority.
Form selector
Use this form or another form?
Need to extend time for a general tax issue not related to Section 367(a) or 367(e)(2)
The form is specifically required only for gain recognition agreements under sections 367(a) and 367(e)(2).
✓ Check the specific statute's regulations.
Need to provide authority when an attorney or agent signs this consent
This form provides the necessary authorization if signing is done by a representative.
✓ Verify that line 5 of Form 2848 specifies acts authorized for the transaction.
Acting as a trustee requires documentation of fiduciary relationship
The source mandates attaching a copy of this form along with the trust instrument when acting as a trustee.
✓ Ensure both Form 56 and the original trust instrument are attached.
Deadline or filing window
For transfers under section 367(a), a U.S. transferor must agree to extend the statute for at least 8 tax years following the tax year of the transfer. For liquidations under section 367(e)(2), the extension must be for at least 3 years after all items are no longer used in a trade or business within the United States, but this period cannot exceed 13 years from filing the original U.S. income tax return.
Checklist
What you need before filling it out
Filer
Required info · Location
U.S. transferor/Domestic corp & foreign distributee
Identity information (Name, Identifying number, Address) · Line 1-3
Taxpayer(s) and Commissioner
Agreement to extend time under Section 367 · Preamble statement
U.S. Transferor (Section 367(a))
Minimum extension period of at least 8 tax years · Line 1 instructions
Domestic/Foreign Corp (Section 367(e)(2))
Extension for liquidations under section 367(e)(2) · Line 1 instructions
Attorney or Agent
Power of Attorney authorization and Form 2848 · Signature block/Attachments
Before you submit
- 1Attach Form 8838 to the U.S. transferor’s income tax return for the tax year the transfer occurs.
- 2Complete the Name(s) of consenting taxpayer(s), providing an identifying number (social security number if individual, employer identification number otherwise).
- 3If filing a joint return, include the social security number of the spouse.
- 4For transactions under section 367(a), ensure the agreement extends the statute for at least 8 tax years following the transfer year.
- 5For liquidations described in section 367(e)(2), confirm the extension covers at least 3 years after all distributed items are no longer used in a U.S. trade or business, but does not exceed 13 years from the original filing.
- 6Include the signature and date of every consenting taxpayer listed on Form 8838.
- 7If an attorney or agent signs, attach a copy of Form 2848 (Power of Attorney) that specifically authorizes the act.
- 8If acting as a trustee, attach copies of Form 56 (Notice Concerning Fiduciary Relationship) and the trust instrument.
How to file this form
- 1Complete the personal identifying information fields for all consenting parties using the correct Social Security number or Employer Identification Number.
- 2Determine the required extension period and enter it on Line 1 based on whether the transaction involves section 367(a) or section 367(e)(2).
- 3Attach Form 8838 to the U.S. transferor’s income tax return for the year the transfer is made.
- 4Sign the form, ensuring all necessary representative and corporate officers sign where applicable.
- 5Mail the completed package with the attached return to the appropriate IRS processing center.
Known limitations
- 1Failure to extend the period of limitations in a timely manner invalidates the gain recognition agreement, treating the property transfer as a taxable exchange (Regulations sections 1.367(a)-8(c) and 1.367(a)-8(j)). [Form p.2]
- 2The form must be used specifically for gain recognition agreements under sections 367(a) and 367(e)(2). [Form p.2]
- 3A United States transferor must file Form 8838 if it enters into a gain recognition agreement pursuant to section 367(a). [Form p.2]
Field map
Compact field-by-field guide
Entity Info
1 items
Name and taxpayer ID of the entity claiming the credit.
Credit Info
1 items
Type of credit or incentive being claimed.
Calculation
2 items
The base amount used to calculate the credit.
Calculated credit amount after applying formulas and limitations.
Certification
1 items
Detailed breakdown supporting the credit calculation.
Signatures
1 items
Sign and date the form.
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Fillable formOpen in Editor->The form is based on a December 2012 revision. Users should visit www.irs.gov/form8838 for the latest information regarding Form 8838.
What changed or needs a fresh check
- Edition date — confirm the revision date is December 2012.
- Latest information source — confirm checking www.irs.gov/form8838 for updates regarding future developments.
- Mailing address — Not stated in the official source.
- Signature requirements — Confirm required signatures include consenting taxpayer, spouse (if joint return), Taxpayer’s representative, and Corporate officer(s).
Quick Facts
Downloads
After you file
- 1Retain books or records relating to Form 8838 or its instructions as long as their content may become material in the administration of any Internal Revenue law. [Form p.2]
- 2If an attorney or agent signs, a copy of Form 2848 must be attached with Form 8838. [Form p.2]
- 3If acting as a trustee and signing, a copy of Form 56 and the trust instrument must be attached to Form 8838. [Form p.2]
- 4If acting as an executor or administrator, a copy of Form 56 and the certified copy of letters of testamentary or court certificate certifying status must be attached to Form 8838. [Form p.2]
Sources
- SRCForm 8838 must be used for gain recognition agreements under sections 367(a) and 367(e)(2). [Form p.2]
- SRCA United States transferor must file Form 8838 if it enters into a gain recognition agreement pursuant to section 367(a). [Form p.2]
- SRCFailure 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). [Form p.2]
- SRCIf 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, and Form 2848 must be attached. [Form p.2]
- SRCIf 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. [Form p.2]
- SRCIf 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. [Form p.2]
- SRCThe form should be attached to your income tax return. [Form p.1]
Common confusion points
Who needs to file this form?
A United States transferor must file Form 8838 if it enters into a gain recognition agreement pursuant to section 367(a) with respect to the transferred property. [Form p.2]
Can my representative sign for me?
An attorney or agent may sign this consent only if that action is specifically authorized by a power of attorney, and Form 2848 must be attached. [Form p.2]
What documents do I need to attach when filing?
If acting as an executor or administrator, the filer must attach Form 56 and the certified copy of letters of testamentary or court certificate certifying status. [Form p.2]
What happens if I file this late?
Failure to extend the period of limitations will invalidate the gain recognition agreement and treat the property transfer as a taxable exchange. [Form p.2]
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Related forms and next steps
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Questions about IRS Form 8838
What is IRS Form 8838 used for?
This form is used by parties involved in large property transfers or corporate liquidations to convince the IRS that they do not need to pay taxes on the transaction immediately. By filing this consent, the parties ask the IRS to grant an extension on when the tax assessment period expires, allowing them time to handle the financial implications of the transfer.
Who must file IRS Form 8838?
A United States transferor must file Form 8838 if it enters into a gain recognition agreement pursuant to section 367(a). Additionally, the domestic corporation and distributee foreign corporation must file Form 8838 if an agreement under section 367(e)(2) is entered into.
What information does IRS Form 8838 require?
The form collects identifying information for the consenting taxpayer(s), including their name, identifying number (social security number or employer identification number), and address. It also requires details about the transaction, such as the Date of transfer, a description of the property transferred, and the name of the transferee.
When is IRS Form 8838 due?
The form must be attached to the U.S. transferor’s income tax return for the tax year the transfer is made.
Where do I file IRS Form 8838?
Form 8838 must be attached to the U.S. transferor’s income tax return for the tax year of the transfer.
How do I complete IRS Form 8838?
The form requires several signatures: the consenting taxpayer(s), the spouse (if filing a joint return), the taxpayer’s representative, and corporate officer(s). The proper completion must include all required identifying information and descriptions of the transferred property.
What happens if IRS Form 8838 is filed incorrectly?
Failure to extend the period in a timely manner will invalidate the gain recognition agreement, and the transfer of property will be treated as a taxable exchange.
Who needs to file this form?
A United States transferor must file Form 8838 if it enters into a gain recognition agreement pursuant to section 367(a) with respect to the transferred property. [Form p.2]
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