Elections Under Section 338 for Corporations Making Qualified Stock Purchases

PAGER/SGML

Userid: ________
Fileid: I8023.SGM

Leading adjust: 0%
(22-Feb-2006)

❏

Draft
(Init. & date)

❏

Ok to Print

Filename: D:\USERS\vghcb\documents\Epicfiles\2005 files\05I8023.SGM

Page 1 of 3

Instructions for Form 8023

13:40 - 22-FEB-2006

The type and rule above prints on all proofs including departmental reproduction proofs. MUST be removed before printing.

Instructions for Form 8023

Department of the Treasury
Internal Revenue Service

(Rev. February 2006)
Elections Under Section 338 for Corporations Making Qualified Stock Purchases
Section references are to the Internal Revenue Code unless otherwise noted.

General Instructions
Purpose of Form
Use Form 8023 to make elections
under section 338 for a corporation
(the “target” corporation) if the
purchasing corporation has made a
qualified stock purchase (QSP) of the
target corporation.
If a section 338(g) election is made
for the target, the target is treated for
purposes of Subtitle A of the Code as
having sold all of its assets on the
acquisition date and then as having
purchased the assets as a new
corporation (“new” target) on the day
after the acquisition date. (For
periods on or before the acquisition
date, the target is sometimes referred
to as the “old” target.) In addition, the
target must recognize gain or loss on
the deemed sale of its assets.
If a section 338(h)(10) election is
made for the target, the target
generally is treated as making the
deemed sale and liquidating. The
treatment of the target shareholders
generally is consistent with the sale
and liquidation treatment. A section
338(h)(10) election cannot be made
for a target corporation unless it is
acquired from a selling consolidated
group, a selling affiliate (as defined in
Regulations section 1.338(h)(10)1(b)(3)), or an S corporation
shareholder (or shareholders).

Who Must File
Generally, a purchasing corporation
must file Form 8023 for the target. If a
section 338(h)(10) election is made
for a target, Form 8023 must be filed
jointly by the purchasing corporation
and the common parent of the selling
consolidated group (or the selling
affiliate or an S corporation
shareholder(s)). If the target is an S
corporation, a section 338(h)(10)
election must be made by all of the
shareholders of the target, including
shareholders who do not sell target
stock in the QSP.

When and Where To File
File Form 8023 by the 15th day of the
9th month after the acquisition date to
make a section 338 election for the

target corporation. In the case of a
Foreign Purchasing Corporation, see
Special Instructions for Foreign
Purchasing Corporations on page 2.
File Form 8023 with the Internal
Revenue Service, Submission
Processing Center, P.O. Box 9941,
Mail Stop 4912, Ogden, UT 84409.

Elections for Multiple Targets
One Form 8023 (rather than multiple
forms) may be used for targets that
meet these three requirements:
1. Each has the same acquisition
date,
2. Each was a member of the
same affiliated group (defined below)
immediately before the acquisition
date, and
3. Each is a member of the same
affiliated group immediately after the
acquisition date.
All of the information that would be
required for the additional targets if a
separate Form 8023 were filed must
be provided for that target in
schedules attached to the form. If a
form is used to make an election
under section 338 for more than one
target, check the box on line 9. In an
attached schedule, provide the
information requested in Sections
A-1, A-2, B, C, and D for each target
corporation other than the one shown
in Section B of the form. In the
schedule, also state which elections
are made for each target (i.e.,
information corresponding to lines 6,
7, 8, and 9 of Section E). Include the
appropriate signature or signature
attachment for each target. See
Signature(s) on page 2.
One special instruction applies to
section 338 elections for lower-tiered
targets, whether one or more Forms
8023 are filed to make the elections.
If, for example, P purchases target A,
target A owns target B, and P makes
a section 338 election for target A,
this results in a deemed QSP of
target B. To make an election for
target B, complete and sign Form
8023 as if the purchasing
corporation(s) of the directly
purchased target were the purchasing
corporation(s) of the lower-tiered
target.
Cat. No. 24987I

Definitions
A qualified stock purchase (QSP) is
the purchase of at least 80% of the
total voting power and value of the
stock of a corporation by another
corporation during a 12-month
acquisition period. Preferred stock (as
described in section 1504(a)(4)) is not
included in computing voting power or
value. See section 338(h)(3) for the
definition of “purchase.”
The acquisition date is the first
day on which a QSP has occurred.
In general, the 12-month
acquisition period is the 12-month
period beginning with the first
acquisition by purchase of stock
included in the QSP. See section
338(h)(1) for additional rules. Also
see Regulations section 1.338-8(j)(2).
The term affiliated group means
an affiliated group as defined in
section 1504(a), determined without
regard to the exceptions contained in
section 1504(b).

Specific Instructions
Employer identification number.
An employer identification number
(EIN) must be included for each
corporation identified in Section A-1,
A-2, B, or C or on attached
schedules. An EIN is not required if
the corporation does not have, and is
not otherwise required to have, an
EIN.
Country of incorporation. When
identifying the country of
incorporation, include political
subdivisions, if any.
Tax year ending. The tax year
ending date of any corporation is
determined without regard to any
QSP.

Section A-1—Purchasing
Corporation
If more than one member of an
affiliated group purchases stock of
the target corporation listed in Section
B (or identified on an attached
schedule), enter in Section A-1 the
name of the corporation that acquired
the largest percentage (by value) of
the target’s stock in the QSP. If two

Page 2 of 3

Instructions for Form 8023

13:40 - 22-FEB-2006

The type and rule above prints on all proofs including departmental reproduction proofs. MUST be removed before printing.

or more affiliates acquired equal
amounts of target stock, insert the
name of any one of them in Section
A-1. On an attached schedule,
provide the information requested on
this form for each purchasing
corporation other than the one listed
in Section A-1. Also provide a
schedule that lists which target stock
was acquired by each purchasing
corporation.

Section A-2—Common
Parent of the Purchasing
Corporation
If the purchasing corporation is a
member of a consolidated group,
complete Section A-2.

Section C—Common Parent
of Selling Consolidated
Group, Selling Affiliate, S
Corporation Shareholder, or
U.S. Shareholder
If Form 8023 is filed to make a
section 338(h)(10) election for a
target that is an S corporation, the
information requested in Section C
must be provided for each
shareholder of the S corporation
target. Attach a schedule with respect
to the other shareholders. If Form
8023 is filed to make a section 338
election for a target that is or was a
controlled foreign corporation (CFC),
enter in Section C the name of the
U.S. shareholder that owned the
largest percentage (by value) of the
target’s stock immediately before the
acquisition date. If two or more U.S.
shareholders acquired equal amounts
of target stock, enter the name of any
one of them in Section C. On an
attached schedule, provide the
information requested on this form for
each U.S. shareholder other than the
one listed in Section C. If a U.S.
shareholder is a member of a
consolidated group other than the
common parent, also provide the
name and EIN for the common parent
of the U.S. shareholder’s group.
Line 4b. Identifying number. Enter
the social security number (SSN) for
an individual. Enter the EIN for a
corporation.

Section E—Elections Under
Section 338
Line 8. Gain recognition election. If
a gain recognition election is made
for a target, it applies to the
purchasing corporation and all
members of its affiliated group that
hold nonrecently purchased target
stock (that is, stock in the target

acquired prior to the 12-month
acquisition period). See Regulations
section 1.338-5(d). If a section
338(h)(10) election is made for a
target, a gain recognition election is
deemed made by each purchasing
group member.
If a gain recognition election is
actually made (not deemed made) for
a target corporation, attach a
schedule providing the target
corporation’s name and the name,
address, and EIN of each purchasing
group member holding nonrecently
purchased stock. The schedule must
also contain the following declaration
(or a substantially similar declaration):
“EACH CORPORATION HOLDING
STOCK SUBJECT TO THIS GAIN
RECOGNITION ELECTION AGREES
TO REPORT ANY GAIN UNDER
THE GAIN RECOGNITION
ELECTION IN ITS FEDERAL
INCOME TAX RETURN (INCLUDING
AN AMENDED RETURN, IF
NECESSARY) FOR THE TAX YEAR
IN WHICH THE ACQUISITION DATE
OF THE TARGET OCCURS.”
The schedule must be signed on
behalf of each purchasing group
member holding nonrecently
purchased target stock by a person
who states under penalties of perjury
that he or she is authorized to act on
behalf of the corporation.
A gain recognition election for the
target also applies to any target
affiliate that has the same acquisition
date as the target and for which a
section 338 election is made. Attach
a schedule with the information
requested above for each such target
affiliate.

Signature(s)
If the common parent of a
consolidated group is the agent of the
purchasing corporation under
Regulations section 1.1502-77, the
person authorized to sign the
statement of section 338 election is
the person authorized to act on behalf
of that common parent.
If a QSP of a target corporation is
made by two or more corporations
that are members of the same
affiliated (but not consolidated) group,
Form 8023 must be signed by a
person authorized to sign on behalf of
each corporation.
If a section 338(h)(10) election is
made for an S corporation, Form
8023 must be signed by each S
corporation shareholder regardless of
whether the shareholder sells his
interest in target stock in the QSP.
-2-

If multiple signatures are required,
the signatures must be provided on a
“SIGNATURE ATTACHMENT” to the
form under the appropriate
“declaration under penalties of
perjury” (this is the statement that
appears on Form 8023 immediately
above the relevant signature line).
Write “See attached” in the signature
area of the Form 8023.

Special Instructions for
Foreign Purchasing
Corporations
Unless otherwise specifically noted,
the general rules and requirements in
these instructions apply to foreign
purchasing corporations.
Who must file. Generally, the
purchasing corporation must file Form
8023. However, the U.S.
shareholders of controlled foreign
purchasing corporations described in
Regulations section 1.338-2(e)(3)
may make the section 338 election
for the purchasing corporation. The
shareholders may make this election
only if the purchasing corporation is
not required under Regulations
section 1.6012-2(g) to file a U.S.
income tax return for the tax year that
includes the acquisition date.
To make this election, complete
Form 8023 and attach a statement to
the form showing the name, address,
identifying number, country in which
organized, and stock interest of each
U.S. shareholder. The statement
must be signed by each U.S.
shareholder. When signing the
statement, each U.S. shareholder
must state under penalties of perjury
that the stock interest for that
shareholder specified in the
statement is correct. Write “See
attached” in the signature area of
Form 8023.
As an alternative to a jointly signed
statement, the shareholder signatures
may be shown on separate
statements attached to Form 8023. If
a U.S. shareholder is not an
individual or does not have delegated
authority to sign the statement, the
person signing must state under
penalties of perjury that he or she is
authorized to sign the statement for
the U.S. shareholder. File Form 8023
for the foreign purchasing
corporation’s tax year that includes
the acquisition date.
Form 8883. Each U.S. shareholder
must also file Form 8883, Asset
Allocation Statement Under Section
338, with Form 5471, Information

Page 3 of 3

Instructions for Form 8023

13:40 - 22-FEB-2006

The type and rule above prints on all proofs including departmental reproduction proofs. MUST be removed before printing.

Return of U.S. Persons With Respect
to Certain Foreign Corporations. See
the Instructions for Form 8883.
When to file. Special rules may
apply to foreign purchasing
corporations. The time during which a
qualifying foreign purchasing
corporation may make a section 338
election for a qualifying foreign target
is described in Regulations section
1.338-2(e)(1).

Special Instructions for
Foreign Targets
Unless otherwise specifically noted,
the general rules and requirements in
these instructions apply to foreign
targets.
A section 338 election will not be
valid for a target that is a controlled
foreign corporation, a passive foreign
investment company, or a foreign
personal holding company unless
affected U.S. persons who own stock
in these targets are notified, in
writing, as set forth in Regulations
section 1.338-2(e)(4).
Form 8883. Each U.S. shareholder
must also file Form 8883 with Form
5471. See the Instructions for Form
8883.

Attachments. Attach a schedule
listing the date of each purchase of
foreign target stock, each purchaser’s
name, the percentage purchased by
each purchaser, and the name and
place of incorporation of any selling
entities. If affected U.S. persons
owning stock in the target are
notified, attach a schedule containing
the name and EIN or SSN of each
U.S. person.
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 contents may become

-3-

material in the administration of any
Internal Revenue law. Generally, tax
returns and return information are
confidential, as required by section
6103.
The time needed to complete and
file this tax form will vary depending
on individual circumstances. The
estimated average time is:
Recordkeeping . . . . . .

9 hr., 19 min.

Learning about the law
or the form . . . . . . . . .

1 hr., 35 min.

Preparing and sending
the form to the IRS . . . .

1 hr., 48 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. You can write to the
Internal Revenue Service, Tax
Products Coordinating Committee,
SE:W:CAR:MP:T:T:SP, 1111
Constitution Ave., NW, IR-6406,
Washington, DC 20224. Do not send
this form to this address. Instead, see
When and Where To File on page 1.