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Formulaire 8886-T Instructions

Instructions pour le formulaire 8886-T, Divulgation par entité exonérée d'impôt concernant l'opération d'abri fiscal interdite

Rév. Décembre 2019

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  • Formulaire 8886-T - Divulgation par entité exonérée d'impôt concernant une transaction d'abri fiscal interdite
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Department of the Treasury  
Internal Revenue Service  
Instructions for Form 8886-T  
(December 2019)  
Disclosure by Tax-Exempt Entity Regarding Prohibited Tax Shelter Transaction  
Section references are to the Internal Revenue  
Code unless otherwise noted.  
filed by the entity. If the tax-exempt entity  
is a plan entity (defined below), Form  
8886-T must be filed by the entity  
manager (defined on page 2).  
A Coverdell education savings account  
as defined in section 530.  
A health savings account within the  
meaning of section 223(d).  
General Instructions  
An ABLE program described in section  
Note. If the entity is a fully self-directed  
qualified plan, IRA, or other savings  
arrangement, the entity manager is the  
plan participant, beneficiary, or owner who  
approved or caused the entity to be a  
party to the prohibited tax shelter  
transaction.  
529A.  
Future Developments  
See Regulations section 1.6033-5 for  
more information.  
For the latest information about  
developments related to Form 8886-T and  
the instructions, such as legislation  
enacted after they were published, go to  
Party to a prohibited tax shelter trans-  
action. A tax-exempt entity is a party to a  
prohibited tax shelter transaction if it:  
Facilitates the transaction by reason of  
its tax-exempt, tax indifferent, or  
tax-favored status;  
Purpose of Form  
Definitions  
Tax-exempt entity. A tax-exempt entity  
is an entity which is either a plan entity  
(defined below) or a non-plan entity  
(defined below).  
Certain tax-exempt entities (defined  
below) are required to file Form 8886-T to  
disclose information with respect to each  
prohibited tax shelter transaction to which  
the entity is a party. See Prohibited tax  
shelter transaction below. See Party to a  
prohibited tax shelter transaction below to  
determine if the tax-exempt entity is a  
party to a prohibited tax shelter  
Is identified in published guidance, by  
type, class, or role, as a party to a  
prohibited tax shelter transaction. See  
example in Regulations section  
53.4965-4(c).  
Non-plan entity. Non-plan entities are  
tax-exempt entities described in section  
4965(c)(1), (c)(2), or (c)(3). The following  
tax-exempt entities are non-plan entities.  
Prohibited tax shelter transaction.  
Generally, a prohibited tax shelter  
transaction is a transaction that is a listed  
transaction (including subsequently listed  
transaction), a confidential transaction, or  
a transaction with contractual protection.  
See definitions of these terms on pages 1  
and 2.  
transaction. See Regulations section  
1.6033-5 for more information. Form  
8886-T is available for public inspection.  
An organization described in section  
501(c) or 501(d).  
Entities described in section 170(c)  
including a state, a possession of the  
United States, the District of Columbia, or  
a political subdivision of a state or  
possession of the United States (but not  
including the United States).  
A separate Form 8886-T must be filed  
for each prohibited tax shelter transaction.  
In addition to filing Form 8886-T, a  
tax-exempt entity and/or entity manager(s)  
may be liable for excise taxes in  
Note. In general, if the IRS determines by  
published guidance that a transaction will  
be excluded from the definition of listed  
transaction, confidential transaction, or  
transaction with contractual protection, the  
transaction will not be considered a  
An Indian tribal government.  
connection with the prohibited tax shelter  
transaction. For more information, see the  
Instructions for Form 4720, Return of  
Certain Excise Taxes Under Chapters 41  
and 42 of the Internal Revenue Code, and  
the Instructions for Form 5330, Return of  
Excise Taxes Related to Employee  
Benefit Plans.  
See Regulations section 1.6033-5 for  
more information.  
prohibited tax shelter transaction.  
Plan entity. Plan entities are  
tax-exempt entities described in section  
4965(c)(4), (c)(5), (c)(6), (c)(7), or (c)(8).  
The following tax-exempt entities are plan  
entities.  
Listed transaction. A listed transaction  
is a transaction that is the same as or  
substantially similar to any of the types of  
transactions that the IRS has determined  
to be a tax avoidance transaction and are  
identified by notice, regulation, or other  
form of published guidance as a listed  
transaction. For existing guidance, see  
Notice 2009-59, 2009-31 I.R.B. 170 and  
A taxable party to a prohibited tax  
shelter transaction must provide a  
statement to any tax-exempt entity that is  
party to the transaction that the  
A plan described in section 401(a)  
which includes a trust exempt from tax  
under section 501(a).  
An annuity plan described in section  
transaction is a prohibited tax shelter  
transaction. See Tax-exempt entity below.  
403(a) or annuity contract described in  
section 403(b).  
A qualified tuition program described in  
If a tax-exempt entity participates in  
any reportable transaction (defined in  
Regulations section 1.6011-4), the  
tax-exempt entity may also be required to  
file Form 8886, Reportable Transaction  
Disclosure Statement. For more  
information, see the Instructions for Form  
8886.  
section 529.  
Subsequently listed transaction. A  
subsequently listed transaction is a  
transaction that is identified in published  
guidance as a listed transaction after the  
tax-exempt entity has entered into the  
transaction and that was not a confidential  
transaction or transaction with contractual  
protection at the time the entity entered  
into the transaction. See section 4965(e)  
(2) for more information.  
An eligible deferred compensation plan  
described in section 457(b) that is  
maintained by a governmental employer  
described in section 457(e)(1)(A).  
An individual retirement account within  
the meaning of section 408(a).  
An individual retirement annuity within  
Frequency of disclosure. A single  
disclosure is required for each prohibited  
tax shelter transaction.  
the meaning of section 408(b).  
An Archer medical savings account  
within the meaning of section 220(d).  
A custodial account treated as an  
Substantially similar. A transaction is  
substantially similar to another transaction  
if it is expected to obtain the same or  
annuity contract under section 403(b)(7)  
(A).  
Who Must File  
If the tax-exempt entity is a non-plan entity  
(defined below), Form 8886-T must be  
Jan 02, 2020  
Cat. No. 49104P  
similar types of tax consequences and is  
either factually similar or based on the  
same or similar tax strategy. Receipt of an  
opinion regarding the tax consequences  
of the transaction is not relevant to the  
determination of whether the transaction is  
the same as or substantially similar to  
another transaction. Further, the term  
substantially similar must be broadly  
construed in favor of disclosure. See  
Regulations section 1.6011-4(c)(4) for  
examples.  
continues, not to exceed $54,000 for each  
required disclosure. In addition, the IRS is  
authorized to make a written demand on  
the entity or entity manager specifying a  
future date by which the required  
Recordkeeping  
The entity or entity manager must keep a  
copy of all documents and other records  
related to a prohibited tax shelter  
transaction. See Regulations section  
1.6001-1(c) and 53.6001-1 for more  
details.  
disclosure must be filed. If there is a failure  
to comply with this demand, there is an  
additional penalty in the amount of $105  
per day after the expiration of the time  
specified in the demand, not to exceed  
$10,500 for each required disclosure. In  
the case of a non-plan entity (defined on  
page 1), the penalty is imposed on the  
tax-exempt entity. In the case of a plan  
entity (defined on page 1), the penalty is  
imposed on the entity manager. These  
penalties are adjusted for inflation. See  
section 6652(c) for more information on  
penalties.  
When To File  
General rules. Generally, the due date  
for filing Form 8886-T depends on whether  
the tax-exempt entity is a party to a  
prohibited tax shelter transaction to  
reduce its own federal tax liability or,  
alternatively, whether it is a party to such a  
transaction to facilitate the transaction by  
reason of its tax-exempt, tax indifferent, or  
tax-favored status.  
Confidential transaction. A confidential  
transaction is a transaction that is offered  
under conditions of confidentiality and for  
which a minimum fee (defined below) was  
paid to an advisor. A transaction is  
considered to be offered under conditions  
of confidentiality if the advisor places a  
limitation on disclosure of the tax  
In the case of a tax-exempt entity that  
is a party to a prohibited tax shelter  
transaction because it facilitates the  
transaction by reason of its tax-exempt,  
tax indifferent, or tax-favored status, Form  
8886-T must be filed on or before May 15  
of the calendar year following the close of  
the calendar year during which the  
tax-exempt entity entered into the  
prohibited tax shelter transaction. See  
section 1.6033-5(d)(1).  
A penalty is assessed to the  
treatment or tax structure of the  
tax-exempt entity (for a non-plan entity) or  
to the entity manager (for a plan entity) for  
each failure to timely file Form 8886-T in  
accordance with its instructions and  
Regulations section 1.6033-5. Form  
8886-T must be completed in its entirety  
with all required attachments to be  
considered complete. Do not enter  
“Information provided upon request,” or  
“Details available upon request,” or any  
similar statement in the space provided.  
Inclusion of any such statements subjects  
the tax-exempt entity (for a non-plan  
entity) or the entity manager (for a plan  
entity) to penalty. See section 6652(c) for  
more information.  
transaction and the limitation on  
disclosure protects the confidentiality of  
the advisor's tax strategies. The  
transaction is treated as confidential even  
if the conditions of confidentiality are not  
legally binding on the taxpayer. See  
Regulations section 1.6011-4(b)(3) for  
more information.  
Minimum fee. For a corporation, or a  
partnership or trust in which all of the  
owners or beneficiaries are corporations  
(looking through any partners or  
Entities identified as a party to a pro-  
hibited tax shelter transaction by pub-  
lished guidance. In the case of a  
tax-exempt entity that becomes a party to  
a prohibited tax shelter transaction  
because it is identified in published  
guidance by type, class, or roles as a party  
to a prohibited tax shelter transaction, the  
published guidance will specify the due  
date of Form 8886-T.  
beneficiaries that are themselves partners  
or trusts), the minimum fee is $250,000.  
For all others, the minimum fee is $50,000.  
The minimum fee includes all fees paid  
directly or indirectly for the tax strategy,  
advice or analysis of the transaction  
(whether or not related to the tax  
Public Inspection  
A completed Form 8886-T is available for  
public inspection as required under  
section 6104.  
consequences of the transaction),  
Subsequently listed transaction. In the  
case of a tax-exempt entity that is a party  
to a prohibited tax shelter transaction  
because the transaction was  
implementation and documentation of the  
transaction, and tax preparation fees to  
the extent they exceed customary return  
preparation fees. Fees do not include  
amounts paid to a person, including an  
advisor, in that person's capacity as a  
party to the transaction.  
Specific Instructions  
subsequently listed, Form 8886-T must be  
filed by May 15 of the calendar year  
following the close of the calendar year  
during which the transaction was identified  
as a listed transaction. See section  
1.6033-5(d)(2).  
Name and Address  
Enter the name and address of the  
tax-exempt entity. Include the suite, room,  
or other unit number after the street  
address. If the Post Office does not deliver  
mail to the street address, show the P.O.  
box number instead of the street address.  
The name and address should be the  
same as shown on other forms filed with  
the IRS.  
Transaction with contractual protec-  
tion. A transaction with contractual  
protection is a transaction for which a  
participant (or related party as defined  
under section 267(b) or 707(b)) has the  
right to a full refund or partial refund of  
fees if all or part of the intended tax  
consequences from the transaction are  
not sustained. It also includes a  
Where To File  
Send the return to the:  
Department of the Treasury  
Internal Revenue Service Center  
Ogden, UT 84201-0027  
Employer Identification  
Number (EIN)  
transaction for which fees are contingent  
on the realization of tax benefits from the  
transaction. For exceptions and other  
details, see Regulations section  
Enter the employer identification number  
of the tax-exempt entity. In the case of a  
fully self-directed qualified plan, or an IRA  
(or other savings arrangement) that does  
not have and is not required to obtain an  
EIN, leave the EIN box blank. Do not enter  
a social security number.  
Penalties  
There is a monetary penalty under section  
6652(c) for the failure to disclose  
1.6011-4(b)(4) and Rev. Proc. 2007-20.  
information required under section  
Entity manager. In the case of a plan  
entity, entity manager means the person  
who approves or otherwise causes the  
tax-exempt entity to be a party to the  
prohibited tax shelter transaction. See  
section 4965(d)(2).  
6033(a)(2) with respect to a prohibited tax  
shelter transaction. The penalty for failure  
to include information with respect to a  
prohibited tax shelter transaction is $105  
for each day during which such failure  
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form. If the transaction is substantially  
similar to a listed transaction, check the  
box next to “listed transaction.” See  
Substantially similar on page 2. If you  
checked the listed transaction box, you  
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  
Who Must Sign  
Non-plan entity. The director, trustee,  
officer, or other official authorized to sign  
for the non-plan entity (defined on page 1)  
must sign Form 8886-T.  
must also identify the transaction on line 3. amount of tax. You are not required to  
provide the information requested on a  
If the transaction is a listed  
Plan entity. For plan entities (defined on  
page 1), the entity manager (defined on  
page 2) must sign Form 8886-T.  
form that is subject to the Paperwork  
transaction or substantially similar  
!
Reduction Act unless the form displays a  
CAUTION  
to a listed transaction, you must  
valid OMB control number. Books or  
check the listed transaction box in addition  
records relating to a form or its instructions  
to any others that may apply.  
How To Complete  
Form 8886-T  
must be retained as long as their contents  
may become material in the administration  
of any Internal Revenue law. Generally,  
In order to be considered complete, Form  
8886-T must be completed in its entirety  
with all required attachments. Do not  
simply write “See Attached.” If the  
information required exceeds the space  
provided, complete as much information  
as possible in the available space and  
attach the remaining information on  
additional sheets. The additional sheets  
must be in the same order as the lines to  
which they correspond. You must also  
include the entity name and identifying  
number at the top of each additional  
sheet.  
Line 3  
tax returns and return information are  
If you selected “listed transaction” on  
confidential, as required by section 6103.  
line 2, provide a brief identifying  
However, certain returns and return  
description of the listed transaction and  
information of tax-exempt organizations  
identify the notice, revenue ruling,  
and trusts are subject to public disclosure  
regulation (for example, Regulations  
and inspection, as provided by section  
section 1.643(a)-8 or Notice 2003-81  
6104. The time needed to complete and  
modified and supplemented by Notice  
file this form will vary depending on  
2007-71, 2007-35 I.R.B. 472),  
individual circumstances. The estimated  
announcement, or other published  
burden for tax-exempt organizations filing  
guidance that identified the listed  
this form is approved under OMB control  
transaction. For guidance identifying listed  
number 1545-0047 and is included in the  
transactions, see Notice 2009-59,  
estimates shown in the instructions for  
2009-31 I.R.B. 170. For further updates,  
their information return.  
Line 1  
If you have comments concerning the  
accuracy of these time estimates or  
Check the box which indicates the type of  
tax-exempt entity that is a party to a  
prohibited tax shelter transaction.  
Line 4  
suggestions for making this form simpler,  
we would be happy to hear from you. You  
can send us comments from IRS.gov/  
FormComments. Or you can write to the  
Internal Revenue Service, Tax Forms and  
Publications Division, 1111 Constitution  
Ave. NW, IR-6526, Washington, DC  
20224. Don’t send the form to this office.  
Instead, see Where To File, on page 2.  
Provide the complete names and  
addresses of all other parties (whether  
taxable or tax-exempt) to the transaction,  
if known. If you need additional space,  
attach separate sheets. At the top of each  
additional sheet, write “Line 4” and enter  
the tax-exempt entity's name and  
identifying number.  
Line 2  
Check the box for all categories that apply  
to the transaction being reported. The  
categories of prohibited tax shelter  
transactions (listed, confidential, and  
transaction with contractual protection)  
are described on pages 1 and 2. Do not  
report more than one transaction on this  
Paperwork Reduction Act Notice. We  
ask for the information on this form to carry  
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