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Formulaire 8023 Instructions

Instructions pour le formulaire 8023, Choix en vertu de l'article 338 pour les sociétés effectuant des achats d'actions admissibles

Rév. octobre 2023

Formulaires associés

  • Formulaire 8023 - Élections en vertu de l'article 338 pour les sociétés effectuant des achats d'actions admissibles
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Department of the Treasury  
Internal Revenue Service  
Instructions for Form 8023  
(Rev. October 2023)  
Elections Under Section 338 for Corporations Making Qualified Stock Purchases  
Section references are to the Internal Revenue Code  
unless otherwise noted.  
by all of the shareholders of the target, including  
shareholders who do not sell target stock in the QSP.  
When and Where To File  
Future Developments  
For the latest information about developments related to  
Form 8023 and its instructions, such as legislation  
enacted after they were published, go to IRS.gov/  
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  
For electronic fax (only to be used for Form 8023 and  
related attachments; other items will not be pro-  
cessed). Please fax to 844-253-9765 (this is toll free).  
The fax cover sheet should include the following.  
What’s New  
To more quickly and accurately process information  
submitted to the IRS, the IRS is incorporating 2D barcode  
technology and providing faster, more convenient  
Subject: Form 8023.  
submission channels like electronic fax. Form 8023 was  
selected by the IRS Digital Mobile and Adaptive Forms  
team for 2D barcode redesign. The redesigned form  
includes minor changes and barcode enhancements on  
pages 1 and 2, and new page 3. This will improve intake  
and ingest form data digitally, decreasing processing time.  
Sender's name, title, phone number, and street  
address.  
Date.  
Number of pages faxed (including cover sheet).  
Do not include sensitive information on the cover  
sheet, such as employer identification number (EIN) or  
social security number (SSN). Fax may not exceed 100  
pages. If you do not have access to electronic fax, mail  
your completed Form 8023 to:  
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.  
Internal Revenue Service  
OTSA Mail Stop 4916  
1973 Rulon White Blvd.  
Ogden, UT 84201  
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.  
Elections for Multiple Targets  
One Form 8023 (rather than multiple forms) may be used  
for targets that meet the following 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.  
3. Each is a member of the same affiliated group  
immediately after the acquisition date.  
If a section 338(h)(10) election is made for the target,  
the target is generally treated as making the deemed sale  
and liquidating. The treatment of the target shareholders  
is generally 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).  
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 (that is, 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), later.  
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  
One special instruction applies to section 338 elections  
for lower-tiered targets, whether one or more Forms 8023  
corporation, a section 338(h)(10) election must be made  
Aug 24, 2023  
Cat. No. 24987I  
 
are filed to make the elections. If, for example, P  
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.  
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.  
Section A-2—Common Parent of the  
Purchasing Corporation  
If the purchasing corporation is a member of a  
consolidated group, complete Section A-2.  
Definitions  
Qualified stock purchase (QSP). A 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.”  
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.  
Acquisition date. This is the first day on which a QSP  
has occurred.  
12-month acquisition period. This is generally 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).  
Affiliated group. This is 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 (EIN). An 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.  
Line 4b. Identifying numbers. Enter the SSN for an  
individual. Enter the EIN for a corporation.  
Tax year ending. The tax year ending date of any  
Section E—Elections Under Section  
338  
corporation is determined without regard to any QSP.  
Country of incorporation. When identifying the country  
of incorporation, include political subdivisions, if any.  
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.  
Foreign Entity  
If the purchasing corporation is a foreign entity, check the  
box in Section A-1.  
If the common parent of the purchasing corporation is a  
foreign entity, check the box in Section A-2.  
If the target corporation is a foreign entity, check the  
box in Section B.  
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.”  
If the common parent of the selling consolidated group,  
selling affiliate, S corporation shareholder, or U.S  
shareholder is a foreign entity, check the box in Section C.  
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 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  
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Instructions for Form 8023 (Rev. 10-2023)  
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.  
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. 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).  
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.  
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 CFC, 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, according to Regulations section 1.338-2(e)(4).  
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 or her interest in target stock in the  
QSP.  
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.  
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.  
Special Instructions for Foreign  
Purchasing Corporations  
Unless otherwise specifically noted, the general rules and  
requirements in these instructions apply to foreign  
purchasing corporations.  
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 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 form will vary  
depending on individual circumstances. The estimated  
burden for business taxpayers filing this form is approved  
under OMB control number 1545-0123 and is included in  
the estimates shown in the instructions for their business  
income tax return.  
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.  
Each U.S. shareholder must also attach Form 8023 to  
the Form 5471, Information Return of U.S. Persons With  
Respect to Certain Foreign Corporations, filed for the  
purchasing corporation 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  
If you have comments concerning the accuracy of  
these time estimates or suggestions for making this form  
Instructions for Form 8023 (Rev. 10-2023)  
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simpler, we would be happy to hear from you. You can  
send us comments from IRS.gov/FormComments. Or  
write to the Internal Revenue Service, Tax Forms and  
Publications Division, 1111 Constitution Ave. NW,  
IR-6526, Washington, DC 20224. Do not send Form 8023  
to this address. Instead, see When and Where To File,  
earlier.  
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Instructions for Form 8023 (Rev. 10-2023)