Instructions for Form 8886 |
2006 Tax Year |
This is archived information that pertains only to the 2006 Tax Year. If you are looking for information for the current tax year, go to the Tax Prep Help Area.
Use Form 8886 to disclose information for each reportable transaction in which you participated. See Participation in a Reportable
Transaction below to determine if you participated in a reportable transaction. For more information on the disclosure rules, see Regulations
section 1.6011-4.
Generally, you must file a separate Form 8886 for each reportable transaction. However, you may report more than one transaction
on one form if the
transactions are the same or substantially similar. See the definition of substantially similar below.
The fact that a transaction must be reported on this form does not mean the tax benefits from the transaction will be disallowed.
Any taxpayer, including an individual, trust, estate, partnership, S corporation, or other corporation, that participates
in a reportable
transaction and is required to file a federal income tax return or information return must file Form 8886. However, a regulated
investment company
(RIC) (as defined in section 851) or an investment vehicle that is at least 95% owned by one or more RICs at all times during
the course of a
transaction is not required to file Form 8886 for any transaction other than a listed transaction (as defined below).
A transaction includes all of the factual elements relevant to the expected tax treatment of any investment, entity, plan,
or arrangement and it
includes any series of steps carried out as part of a plan.
A transaction is substantially similar to another transaction if it is expected to obtain the same or 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.
Participation in a Reportable Transaction
A reportable transaction is a transaction described in one or more of the following five categories.
This category includes transactions that are the same as or substantially similar to one of the types of transactions that
the IRS has determined
to be a tax avoidance transaction. These transactions are identified by notice, regulation, or other form of published guidance
as a listed
transaction. For existing guidance see:
-
Notice 2004-67, 2004-41 I.R.B. 600
-
Notice 2005-13, 2005-9 I.R.B. 630
For updates to this list go to the IRS web page at
www.irs.gov/businesses/corporations
and click on Abusive Tax Shelters and Transactions. The listed transactions in the above notices and rulings will also be
periodically updated in
future issues of the Internal Revenue Bulletin. You can find a notice or ruling in the Internal Revenue Bulletin at
www.irs.gov/pub/irs-irbs/irbXX-YY.pdf, where XX is the two-digit year and YY is the two-digit bulletin number. For example, you can find
Notice 2004-67, 2004-41 I.R.B. 600, at
www.irs.gov/pub/irs-irbs/irb04-41.pdf.
You have participated in a listed transaction if any of the following applies.
-
Your tax return reflects tax consequences or a tax strategy described in published guidance that lists the transaction.
-
You know or have reason to know that tax benefits reflected on your tax return are derived directly or indirectly from such
tax consequences
or tax strategy.
-
You are in a class of persons that published guidance treats as participants in a listed transaction.
Confidential Transactions
This category includes transactions that are offered to you under conditions of confidentiality and for which you paid an
advisor a minimum fee
(defined below). A transaction is considered to be offered under conditions of confidentiality if the advisor places a limitation
on your disclosure
of the tax treatment or tax structure of the 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
you. 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, 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 consequences of the transaction), 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.
You have participated in a confidential transaction if your tax return reflects a tax benefit from the transaction. If disclosure
by a pass-through
entity (partnership, S corporation, or trust) is limited, but disclosure by the partner, shareholder, or beneficiary is not
limited, then the
pass-through entity (but not the partner, shareholder, or beneficiary) has participated in the confidential transaction.
Transactions With Contractual Protection
This category includes transactions for which you have, or a related party (as described in sections 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
transaction for which fees are contingent on your realization of tax benefits from the transaction. For exceptions and other
details, see Regulations
section 1.6011-4(b)(4).
You have participated in a transaction with contractual protection if your tax return reflects a tax benefit from the transaction.
If a
pass-through entity (partnership, S corporation, or trust) has the right to a full or partial refund of fees or has a contingent
fee arrangement, but
the partner, shareholder, or beneficiary individually does not, then the pass-through entity (but not the partner, shareholder,
or beneficiary) has
participated in the transaction with contractual protection.
This category includes transactions that result in your claiming a loss under section 165 (described below) if the gross amount
of the loss (before
netting any gain against it) is:
For individuals.
At least $2 million in any single tax year or $4 million in any combination of tax years. (At least $50,000 for a
single tax year if the loss arose
from a section 988 transaction defined in section 988(c)(1) (relating to foreign currency transactions), whether or not the
loss flows through from an
S corporation or partnership).
For corporations (other than S corporations).
At least $10 million in any single tax year or $20 million in any combination of tax years.
For partnerships with only corporations (other than S corporations) as partners (looking through any partners that are also
partnerships).
At least $10 million in any single tax year or $20 million in any combination of tax years, whether or not any losses
flow through to one or more
partners.
For all other partnerships and S corporations.
At least $2 million in any single tax year or $4 million in any combination of tax years, whether or not any losses
flow through to one or more
partners or shareholders.
For trusts.
At least $2 million in any single tax year or $4 million in any combination of tax years, whether or not any losses
flow through to one or more
beneficiaries. (At least $50,000 for a single tax year if the loss arose from a section 988 transaction defined in section
988(c)(1) (relating to
foreign currency transactions), whether or not the loss flows through from an S corporation or partnership).For purposes of
the above threshold
amounts, a section 165 loss does not take into account offsetting gains, other income, or limitations. The full amount of
a loss is taken into account
in the year it was sustained, regardless of whether all or part of the loss enters into the computation of a net operating
loss under section 172 or a
net capital loss under section 1212 that is a carryback or carryover to another year. A section 165 loss does not include
any portion of a loss,
attributable to a capital loss carryback or carryover from another year, that is treated as a deemed capital loss under section
1212.
In determining whether a transaction results in a taxpayer claiming a loss that meets the threshold amounts over a
combination of tax years as
described above, only losses claimed in the tax year that the transaction is entered into and the 5 succeeding tax years are
combined.
The types of losses included in this category are section 165 losses, including amounts deductible under a provision
that treats a transaction as a
sale or other disposition or otherwise results in a deduction under section 165. However, this category does not include losses
described in Rev.
Proc. 2004-66, 2004-50 I.R.B. 966 (or future published guidance).
You have participated in a loss transaction if your tax return reflects a section 165 loss that equals or exceeds
the applicable threshold amount.
If you are a partner, shareholder, or beneficiary of a pass-through entity (partnership, S corporation, or trust), you have
participated in a loss
transaction if your tax return reflects a section 165 loss allocable to you from the pass-through entity (disregarding netting
at the entity level)
that equals or exceeds the applicable threshold amount.
Transactions With a Significant Book-Tax Difference
The disclosure requirement for this category has been eliminated by Notice 2006-6. Transactions with a significant book-tax
difference that would
have been required to be disclosed on returns filed with due dates (including extensions) after January 5, 2006 are no longer
reportable transactions.
These transactions do not need to be disclosed on Form 8886. For more details, see Notice 2006-6, 2006-5 I.R.B. 385.
However, Notice 2006-6 does not relieve taxpayers of any disclosure obligations for significant book-tax difference transactions
that should have
been disclosed on a return with a due date prior to January 6, 2006. For more information on book-tax difference transactions,
see Regulations section
1.6011-4 and the instructions for Form 8886 for the year in which the transaction should have been disclosed.
If the significant book-tax difference transaction is also a transaction described in any of the five remaining reportable
transaction categories,
the transaction must still be disclosed. For more information, see the instructions for line 2 on page 4.
Transactions With a Brief Asset Holding Period
This category includes transactions that result in your claiming a tax credit (including a foreign tax credit) of more than
$250,000 if the asset
giving rise to the credit was held by you for 45 days or less. For purposes of determining the holding period of the asset,
the principles of section
246(c)(3) and (c)(4) apply. Disregard any transactions generating a foreign tax credit for withholding taxes or other taxes
imposed on a dividend that
are not disallowed under section 901(k) (including transactions eligible for the exception for security dealers under section
901(k)(4)).
You have participated in a transaction involving a brief asset holding period if your tax return reflects items giving rise
to a tax credit of more
than $250,000. If you are a partner, shareholder, or beneficiary of a pass-through entity (partnership, S corporation, or
trust), you have
participated in such a transaction if you are claiming a tax credit on your tax return from the pass-through entity (disregarding
netting at the
entity level) of more than $250,000.
A transaction is not considered a reportable transaction if the IRS makes a determination in published guidance that it is
not subject to the
reporting requirements. The IRS may also determine by individual letter ruling that an individual letter ruling request satisfies
the reporting
requirements. However, an individual letter ruling may be relied upon only by the taxpayer who requested the individual letter
ruling. This includes a
transaction that would otherwise be included in any of the above reportable transaction categories.
Certain Lease Transactions
Customary leasing transactions involving tangible personal property that are exempt from the tax shelter registration requirements
and the list
maintenance requirements under Notice 2001-18, 2001-9 I.R.B. 731, are not required to be reported on Form 8886 unless the
transaction is a listed
transaction.
Shareholders of Foreign Corporations
Special rules apply when determining whether you participated in a reportable transaction if you are a U.S. shareholder of
a foreign personal
holding company, for tax years beginning before January 1, 2005, or a controlled foreign corporation, or if you are a 10%
shareholder of a qualified
electing fund. See Regulations section 1.6011-4(c)(3)(i)(G) for details.
You may request a ruling from the IRS to determine whether a transaction must be disclosed. The request for a ruling must
be submitted to the IRS
by the date Form 8886 would otherwise be required to be filed. Send the request to Internal Revenue Service, Attn: CC:PA:LPD:DRU,
P.O. Box 7604, Ben
Franklin Station, Washington, DC 20044. However, if a private delivery service is used, send the request to Internal Revenue
Service, Attn:
CC:PA:LPD:DRU, Room 5336, 1111 Constitution Avenue, NW, Washington, DC 20224. See Rev. Proc. 2005-1, 2005-1 I.R.B. 1, or subsequent
IRS guidance for
more details. If the request fully discloses all relevant facts relating to the transaction, your requirement to disclose
the transaction will be
suspended during the period that the ruling request is pending. If the IRS determines that the transaction is a reportable
transaction, you must
disclose the transaction on Form 8886 and file the form by the 60th day after the issuance of the ruling. Also send a copy
of the form by this date to
the address shown in When and How To File below. If your request for a ruling is withdrawn, you must file the form by the 60th day after
the date it is withdrawn.
You must keep a copy of all documents and other records related to a reportable transaction. See Regulations section 1.6011-4(g)
for more details.
Attach Form 8886 to your income tax return or information return (including a partnership, S corporation or trust return),
including amended
returns, for each tax year in which you participated in a reportable transaction. If a reportable transaction results in a
loss or credit carried back
to a prior tax year, attach Form 8886 to an application for tentative refund (Form 1045 or 1139) or amended return for the
carryback years. If you
filed a return or amended return that reflects the tax consequences or tax strategy of a transaction that later becomes a
listed transaction, attach
Form 8886 to the first tax return you file after the date the transaction became a listed transaction.
Also file separately. If this is an initial year filing of Form 8886, send an exact copy of the form to the Office of Tax Shelter
Analysis (OTSA) at the following address when you file the form with your tax return:
1973 North Rulon White Blvd.
If you file your income tax return electronically, the copy sent to OTSA must show exactly the same information, word for
word, provided with the
electronically filed return and it must be provided on the official IRS Form 8886 or an exact copy of the form. If you use
a computer-generated or
substitute Form 8886, it must be an exact copy of the official IRS form. See the instructions for your income tax return for
information on electronic
filing and substitute forms.
There is a monetary penalty under section 6707A for the failure to include on any return or statement any information required
to be disclosed
under section 6011 with respect to a reportable transaction. The penalty for failure to include information with respect to
a reportable transaction,
other than a listed transaction, is $10,000 in the case of a natural person, and $50,000 in any other case. The penalty for
failure to include
information with respect to a listed transaction is $100,000 in the case of a natural person and $200,000 in any other case.
This penalty is in
addition to any other penalty that may be imposed. See section 6707A and Notice 2005-11, 2005-7 I.R.B. 493 for more information.
If you have a reportable transaction understatement, an accuracy-related penalty may be imposed under section 6662A. This
penalty applies to the
amount of the understatement that is attributable to any reportable transaction with a significant tax avoidance purpose.
The penalty increases for
transactions that are not disclosed in accordance with Form 8886 and these instructions. If the transaction is not disclosed
and a reportable
transaction understatement exists, you will not have a reasonable cause and good faith defense under section 6664(d) with
respect to the
accuracy-related penalty under section 6662A. For more information, see section 6662A and Notice 2005-12, 2005-7 I.R.B. 494.
A penalty is assessed for each failure by any person required to file a Form 8886, if the person (a) fails to file the form
by the due date,
including extensions, or (b) files a form that fails to include all the information required (or includes incorrect information).
The Form 8886 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 you to penalty under
sections 6707A and 6662A.
If you are required to pay a penalty under section 6707A or section 6662A, you may be required to disclose them on reports
filed with the
Securities and Exchange Commission. If you do not disclose these penalties, you may incur additional penalties under section
6707A(e). For more
information, see section 6707A(e) and Rev. Proc. 2005-51, 2005-33 I.R.B. 296.
Previously Undisclosed Listed Transactions
If you are required to disclose a listed transaction and fail to do so within the time and manner prescribed under section
6011 and the related
regulations, then under section 6501(c)(10) the period of limitations to assess any tax with respect to the listed transaction
will be extended beyond
the normal assessment period until one year after the earlier of either:
-
The date you disclose the transaction by filing Form 8886 in accordance with the manner prescribed in Rev. Proc. 2005-26 (or
subsequently
published guidance), or
-
The date that a material advisor provides the information required under section 6112 in response to a request by the IRS
under section
6112.
Section 6501(c)(10) is effective for tax years with respect to which the limitations period on assessment did not expire prior
to October 22, 2004.
Section 6501(c)(10) does not revive an assessment period that expired prior to October 22, 2004. For more information, see
Rev. Proc. 2005-26, 2005-17
I.R.B. 965.
If you are filing Form 8886 to disclose a previously undisclosed listed transaction for purposes of section 6501(c)(10), submit
the form and a
cover letter to the Internal Revenue Service Center where your original tax return was filed. Write across the top of page
1 of each Form 8886 the
following statement: “Section 6501(c)(10) Disclosure” followed by the tax year and tax return to which the disclosure statement applies. For
example, if the Form 8886 relates to your Form 1040 for the 2002 tax year, you must include the following statement: “Section 6501(c)(10)
Disclosure; 2002 Form 1040” on the form. The cover letter must identify the tax return to which the disclosure statement relates and the following
statement signed under penalties of perjury by the taxpayer and if applicable, the paid preparer of Form 8886: “Under penalties of perjury, I
declare that I have examined this reportable transaction disclosure statement and, to the best of my knowledge and belief,
this reportable transaction
disclosure statement is true, correct, and complete. Declaration of preparer (other than the taxpayer) is based on all information
of which the
preparer has any knowledge.” Separate Forms 8886 and separate cover letters must be submitted for each tax year for which you participated in the
undisclosed listed transaction. You must also submit a copy of the form and cover letter simultaneously to OTSA at the address
indicated above. See
Rev. Proc. 2005-26, 2005-17 I.R.B. 965 for additional guidance.
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