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Форма 965-D Інструкція

Інструкція по формуванню 965-D, угода про передачу під розділ 965(i)(2)

Ред. Грудень 2019

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  • Форма 965-D - Угода про передачу в розділі 965(i)(2)
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Department of the Treasury  
Internal Revenue Service  
Instructions for Form 965-D  
Transfer Agreement Under Section 965(i)(2)  
(December 2019)  
Section references are to the Internal Revenue Code unless  
otherwise noted.  
covered triggering event. References in Part IV, Part V, and Part  
VII (including the signature block area) to the “transferor” are  
references to the “eligible section 965(i) transferor” filing the  
form.  
Future Developments  
Section 965(i) net tax liability. The section 965(i) net tax  
liability is, with respect to an S corporation and a shareholder of  
the S corporation that has made a section 965(i) election, the  
excess (if any) of the S corporation shareholder's net income tax  
for the taxable year in which the S corporation shareholder  
includes a section 965(a) inclusion in income, determined as if  
the only section 965(a) inclusions included in income by the S  
corporation shareholder are domestic pass-through entity  
shares of section 965(a) inclusions by the S corporation with  
respect to DFICs of which the S corporation is a U.S.  
For the latest information about developments related to Form  
965-D and its instructions, such as legislation enacted after they  
were published, go to IRS.gov/Form965D.  
Background  
On December 22, 2017, section 965 of the Code (section 965)  
was amended. As a result of the amendment, certain taxpayers  
are required to include in income an amount (a section 965(a)  
inclusion amount) based on the accumulated post-1986 deferred  
foreign income of certain foreign corporations (specified foreign  
corporations) they own either directly or indirectly through other  
entities. Taxpayers that are S corporation shareholders may  
have inclusions in income under section 951(a) by reason of  
section 965 due to ownership of deferred foreign income  
corporations (DFICs) through S corporations that are  
shareholder, over the S corporation shareholder's net income  
tax for the taxable year determined without regard to section  
965, and without regard to any income, deduction, or credit  
properly attributable to a dividend received (directly or through a  
chain of ownership described in section 958(a)) by the S  
corporation from, or an inclusion under sections 951(a)(1)(B)  
and 956 with respect to, a DFIC and paid during, or included with  
respect to, the DFIC's inclusion year.  
themselves U.S. shareholders of the DFICs.  
For each section 965(i) net tax liability (as defined later in  
these instructions), the taxpayer may elect to defer payment of  
such liability until a triggering event occurs. Each section 965(i)  
net tax liability is calculated and the section 965(i) election is  
made on an S corporation-by-S corporation basis. If a covered  
triggering event (defined below) occurs, such event will not be  
considered to trigger the section 965(i) net tax liability if the  
transferee enters into an agreement to be liable for the section  
965(i) net tax liability with respect to the stock transferred in the  
same manner as if the transferee were the original electing  
taxpayer. Partial triggering events may occur if not all of the  
stock of the S corporation is transferred. In the case of multiple  
partial transfers, an agreement must be entered into for each  
partial transfer treated as a covered triggering event.  
Purpose of Form  
Form 965-D should be used by an eligible section 965(i)  
transferor and an eligible section 965(i) transferee to enter into a  
transfer agreement under section 965(i)(2).  
This form sets forth the information and representations that  
must be provided to meet the requirements of Regulations  
section 1.965-7(c)(3)(iv)(B)(4) in order to enter into a transfer  
agreement under section 965(i)(2). If an eligible section 965(i)  
transferor and an eligible section 965(i) transferee properly  
complete and file this Form 965-D with respect to a covered  
triggering event in accordance with these instructions, they will  
be considered to have properly entered into a transfer  
agreement under section 965(i)(2). However, the Commissioner  
may review the transfer agreement and may ask additional  
questions or require additional information, including, for  
example, information about the eligible section 965(i)  
General Instructions  
Definitions  
Covered triggering event. A covered triggering event is, with  
respect to a shareholder’s section 965(i) net tax liability with  
respect to an S corporation, the transfer of any share of stock of  
the S corporation (including by death or otherwise) by the  
shareholder that results in a change of ownership for federal  
income tax purposes.  
Eligible section 965(i) transferee. An eligible section 965(i)  
transferee is a single U.S. person (including a person listed in  
Regulations section 1.1362-6(b)(2) with respect to a trust or  
estate, but not a domestic pass-through entity itself) that  
becomes a shareholder of an S corporation due to a transfer  
from an eligible section 965(i) transferor in a transaction that is a  
covered triggering event. References in Part VI and Part VII  
(including the signature block area) to the “transferee” are  
references to the “eligible section 965(i) transferee” filing the  
form.  
transferee’s ability to pay the outstanding section 965(i) net tax  
liability. If the Commissioner determines that the transfer  
agreement contains a material misrepresentation or material  
omission, or if the additional information requested is not  
provided within a reasonable timeframe (as communicated by  
the Commissioner), then the transfer agreement may be rejected  
as of the date of the original triggering event. Alternatively, the  
Commissioner may determine that a triggering event has  
occurred as of the date the transfer agreement was found to  
have a material misrepresentation or material omission.  
Who Must File  
The eligible section 965(i) transferor and the eligible section  
965(i) transferee with respect to a covered triggering event must  
file Form 965-D to meet the requirements for the eligible section  
965(i) transferee exception under Regulations section 1.965-7(c)  
(3)(iv). Form 965-D may only be filed by an eligible section 965(i)  
transferor and eligible section 965(i) transferee.  
Eligible section 965(i) transferor. An eligible section 965(i)  
transferor is a shareholder of an S corporation who has a section  
965(i) net tax liability with respect to the S corporation and who  
transfers stock of the S corporation in a transaction that is a  
Note. Where there are multiple partial transfers, separate  
transfer agreements must be filed for each partial transfer  
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treated as a covered triggering event. In addition, an S  
covered triggering event that is the death of the eligible section  
965(i) transferor, and the transfer agreement must be filed within  
30 days of the covered triggering event (that is, the transfer of  
shares to the beneficiary or beneficiaries).  
corporation cannot file Form 965-D on behalf of its shareholders.  
When and Where To File  
Except in the case of a covered triggering event that is the death  
of the eligible section 965(i) transferor, within 30 days of the  
covered triggering event, the original Form 965-D must be  
mailed to the IRS’s Memphis Compliance Service Collection  
Operations at the following address.  
Specific Instructions  
Part I — Transferor Information  
Use Part I to provide the identifying information of the transferor.  
Enter the transferor’s complete legal name, taxpayer  
Memphis CSCO  
5333 Getwell Road MS 81  
Memphis, TN 38118  
identification number, and street address or post office box.  
Part II — Transferee Information  
In addition, both the eligible section 965(i) transferor and the  
eligible section 965(i) transferee must attach a duplicate copy of  
Form 965-D to their tax returns for the tax years during which the  
covered triggering event occurs, filed by the due date for the  
returns (with regard to any extension of time to file).  
Use Part II to provide the identifying information of the  
transferee. Enter the transferee’s name, taxpayer identification  
number, and street address or post office box.  
A transferee that is a foreign entity or a domestic  
pass-through entity is not an eligible section 965(i)  
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Except in the case of death, Form 965-D will be  
CAUTION  
transferee. If a transfer consists of multiple partial  
considered timely filed only if filed within 30 days of the  
transfers, a transfer agreement must be entered into by the  
eligible section 965(i) transferor and each eligible section 965(i)  
transferee for each partial transfer treated as a covered  
triggering event.  
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CAUTION  
date that the covered triggering event occurs. No  
extension of time to file Form 965-D will be granted, and relief is  
not available under Regulations section 301.9100-2 or  
301.9100-3 to enter into a transfer agreement late.  
Part III — Identifying Information of  
the S Corporation (With Respect to  
Which the Section 965(i) Election  
Was Effective)  
A copy of the eligible section 965(i) transferor’s most recent  
Form 965-A is required to be included with Form 965-D.  
Special Rules in the Case of Death of the  
Eligible Section 965(i) Transferor  
If the covered triggering event is the death of the eligible section  
965(i) transferor, certain special rules apply regarding the due  
date of the transfer agreement and the identity of the eligible  
section 965(i) transferee.  
Use Part III to provide identifying information of the S corporation  
with respect to which a section 965(i) election was in effect and  
with respect to which the covered triggering event occurred.  
Enter the name and taxpayer identification number of the S  
corporation.  
Due date of transfer agreement. If the covered triggering  
event is the death of the eligible section 965(i) transferor, the  
transfer agreement must be filed by the unextended due date for  
the eligible section 965(i) transferor’s final income tax return.  
Part IV — Triggering Event Leading to  
Transfer Agreement  
Eligible section 965(i) transferee. Except in the case of  
transfers to trusts, if the covered triggering event is the death of  
the eligible section 965(i) transferor and the identity of the  
beneficiary or beneficiaries (in the case of multiple partial  
transfers) is determined as of the due date for the eligible section  
965(i) transferor’s final income tax return, then the transfer may  
be treated as a transfer directly from the eligible section 965(i)  
transferor to the beneficiary or beneficiaries (provided the  
beneficiary or beneficiaries are themselves eligible section  
965(i) transferees).  
Line 1. Provide the date on which the covered triggering event  
for which the transfer agreement is being filed occurred.  
Line 2. Check the “Yes” box if the covered triggering event for  
which the transfer agreement is being filed is the death of the  
eligible section 965(i) transferor. Otherwise, check the “No” box.  
A transfer from an estate to the original eligible section  
965(i) transferor’s beneficiary or beneficiaries is not a  
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CAUTION  
covered triggering event that is the death of the eligible  
section 965(i) transferor.  
If, however, the identity of the beneficiary or beneficiaries is  
not determined as of the due date for the eligible section 965(i)  
transferor’s final income tax return, then the transfer must be  
treated as two transfers: first, a transfer from the eligible section  
965(i) transferor to his or her estate that occurs at the time of  
death; and second, a transfer from the estate to the beneficiary  
or beneficiaries that occurs when the shares are actually  
transferred. Separate transfer agreements must be filed for each  
transfer.  
Line 3. If the covered triggering event is a partial transfer,  
provide the percentage of the section 965(i) net tax liability  
attributable to the stock being transferred. If the covered  
triggering event is the transfer of all of the stock of the S  
corporation, enter 100.00%.  
Line 4. Describe in detail the covered triggering event for which  
the transfer agreement is being filed. For example, indicate  
whether the covered triggering event is a transfer pursuant to a  
sale, gift, or other disposition, or whether the covered triggering  
event is the death of the eligible section 965(i) transferor.  
Note. Where the transfer is treated as two transfers, the transfer  
from the eligible section 965(i) transferor to his or her estate is  
treated as a transfer resulting from a covered triggering event  
that is the death of the eligible section 965(i) transferor, and the  
transfer agreement must be filed by the due date for the eligible  
section 965(i) transferor’s final income tax return (with regard to  
any extension of time to file). The transfer from the estate to the  
beneficiary or beneficiaries is not a transfer resulting from a  
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Part V — Report of Unpaid Section  
965(i) Net Tax Liability or Portion  
Thereof Attributable to Transferred  
Stock  
Transferor Signature  
This transfer agreement must be signed by a person who is  
authorized to sign a return on behalf of the eligible section 965(i)  
transferor. By signing this transfer agreement, you declare,  
under penalties of perjury, that you have examined the form, and  
to the best of your knowledge and belief, Parts I, III, IV, and V are  
true, correct, and complete. You also certify that you have the  
authority to execute this transfer agreement.  
Line 5. Enter the dollar amount of the eligible section 965(i)  
transferor’s section 965(i) net tax liability being assumed by the  
eligible section 965(i) transferee.  
Transferee Signature  
This transfer agreement must be signed by a person who is  
authorized to sign a return on behalf of the eligible section 965(i)  
transferee. By signing this transfer agreement, you declare,  
under penalties of perjury, that you have examined the form, and  
to the best of your knowledge and belief, Parts II, III, IV, V, and VI  
are true, correct, and complete. You also certify that you have  
the authority to execute this transfer agreement.  
Note. The Commissioner may adjust the amount of the eligible  
section 965(i) transferor’s section 965(i) net tax liability.  
Part VI —Transferee’s Ability To Pay  
Remaining Liability  
Line 6. Check the “Yes” box to confirm that the transferee is  
able to pay the section 965(i) net tax liability being assumed by  
the transferee. If you check the “No” box, you do not meet the  
requirements to enter into a valid transfer agreement.  
Line 7. Check the “Yes” box if the leverage ratio of the eligible  
section 965(i) transferee exceeds three to one. Otherwise, check  
the “No” box. The leverage ratio means the ratio that the total  
indebtedness of the eligible section 965(i) transferee bears to  
the sum of its money and all other assets reduced, but not below  
zero, by the total indebtedness. See Regulations section  
1.965-7(c)(3)(iv)(B)(6) for more information.  
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  
Note. The leverage ratio of the eligible section 965(i) transferee  
is a factor the Commissioner uses to determine whether the  
eligible section 965(i) transferee has the ability to pay the  
outstanding section 965(i) net tax liability. A leverage ratio in  
excess of three to one does not by itself determine whether or  
not a transfer agreement is valid.  
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 individual 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.  
Line 8. Provide any other pertinent information regarding the  
eligible section 965(i) transferee’s ability to pay the section  
965(i) net tax liability being assumed. This information may  
include, but is not limited to, the adequacy of the transferee’s  
income, the value of the transferee’s assets, and the transferee’s  
access to capital.  
Part VII — Terms of Agreement  
By signing this transfer agreement, the eligible section 965(i)  
transferor and the eligible section 965(i) transferee agree to the  
terms set forth in Part VII of Form 965-D.  
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