Form 8883 – Asset Allocation Statement Under Section 338

Understanding the Need for Form 8883

Okay, let’s talk about buying and selling businesses, and how taxes play a big part. When one company buys another, it’s not always a simple “here’s the money, now it’s mine” situation. Sometimes, the way the purchase is treated for tax purposes can make a big difference. That’s where Section 338 of the tax code and Form 8883 come into play. Think of it like this: you’re buying a house, but instead of just buying the house, you’re also buying all the stuff inside it, and each piece of furniture, appliance, and trinket has its own tax value. Form 8883 helps us sort all of that out.

What is Section 338?

At its core, Section 338 allows a company that buys another company’s stock to treat the purchase as if they bought the company’s assets instead. This might sound confusing but think about it like this: if you buy a company’s shares you technically own a piece of the company, while, buying the assets would mean you now own everything the company had (equipment, buildings, inventory, etc). Why would a company want to do this?

Stepping Up the Basis
The main reason a buyer may choose Section 338 is to “step up” the tax basis of the acquired company’s assets. The basis is essentially the original cost of an asset. The higher the basis, the less taxable profit a company might have later when the asset is sold. It’s all about minimizing taxes. When a business is bought through a stock purchase, the basis of its assets is normally locked in at historical values. Section 338 allows the buyer to ‘step up’ the value to reflect the new purchase price (i.e., fair market value).

Example
Imagine a company has equipment that was bought long ago for $100,000. Today, that equipment is worth $300,000. If the buying company bought the stock of the company with the equipment, the equipment’s tax basis would remain at $100,000. But if Section 338 was elected, the basis would be stepped up to $300,000. This means, if the buyer sold the asset for $300,000, there would be no taxable profit on the sale. This is great for tax planning!

So, Where Does Form 8883 Fit In?

Form 8883 is the official IRS form used to report the allocation of the purchase price when Section 338 is elected. It’s like a detailed inventory list of everything that was bought and how much of the total purchase price is allocated to each item. The form ensures a standardized way to allocate the purchase price to various asset categories, each having its own tax implications. Both the buyer and the seller need to complete this form (but might not always agree). This allocation is essential, as it impacts the buyer’s depreciation, gains, and losses in the future.

How Form 8883 Works: Asset Classes

Form 8883 categorizes a company’s assets into different “classes” which have different tax rules for each. Here are the main classes:

• Class I: Cash and bank accounts.
• Class II: Actively traded personal property (like stocks, bonds, etc.).
• Class III: Debt instruments like CDs and government securities.
• Class IV: Inventory and stock in trade.
• Class V: Assets not included in other classes, such as equipment, furniture, and buildings.
• Class VI: Intangibles like patents, copyrights, customer lists, etc.
• Class VII: Goodwill and going concern value.

The purchase price has to be allocated based on a specific order to these classes. This order goes from Class I to Class VII. So first you allocate purchase price to all assets in Class I, then Class II, and so on. Once all assets in a particular class have been allocated to fair market value, then any remaining purchase price can be allocated to the next class.

Why is this allocation so important?

Because different asset classes have different tax treatments. For example, buildings and equipment can be depreciated over several years, thus reducing taxable profit. Intangible assets like goodwill are also depreciated over a much longer time period (15 years) and thus have different tax implications. By filling out Form 8883 carefully, both the buyer and seller make sure taxes are handled properly.

Who Needs to File Form 8883?

Form 8883 is not an everyday tax form. It’s only required when these conditions are met:

• A corporation buys another corporation’s stock
• The buyer wants to treat the stock purchase as an asset purchase for tax purposes, by electing section 338
• Both the seller and buyer agree on the election.

If you’re involved in the purchase or sale of a company and Section 338 is on the table, it’s a very good idea to consult with a tax professional. Form 8883 has to be completed and filed, or the IRS may audit the election.

Related Concepts and Terms

• Section 338(h)(10): This election is similar to a 338 election, but treats the sale of a subsidiary of a consolidated group as an asset sale. Form 8883 is required for this election also.
• Basis: The original cost of an asset used for tax purposes.
• Depreciation: The gradual expensing of an asset’s cost over its useful life.
• Goodwill: The value of a business beyond its tangible assets, which is often a component of the purchase price.
• Fair Market Value: The price at which property would change hands between a willing buyer and a willing seller.

Tips and Strategies

1. Professional Help: Always seek professional help, as these types of business acquisitions are complicated, and each has its own unique tax rules.
2. Appraisals: Obtain professional appraisals for all major assets. This will help ensure the purchase price allocation is accurate.
3. Agreement: Buyers and sellers should agree on the asset allocation before the transaction closes. The IRS expects consistency between the buyer and seller.
4. Timely Filing: Make sure the election and Form 8883 is filed on time. Failure to do so can result in penalties.

Common Mistakes and Misconceptions

• Thinking it’s a stock sale: Confusing a stock purchase with an asset purchase is a common mistake. Section 338 changes the way we treat the stock purchase for tax purposes to treat the transaction as an asset purchase.
• Incorrect Asset Allocation: Not accurately allocating the purchase price to the correct asset classes. This can lead to future tax issues.
• Ignoring Professional Advice: Attempting to complete Form 8883 and navigating the rules under section 338 without consulting a tax professional. This is a complex area of tax law.

Conclusion

Form 8883 is a crucial piece of paperwork for businesses involved in acquisitions under Section 338. While it may seem complex, understanding the basics of asset allocation is key for proper tax planning and compliance. By breaking down the terms and processes, this information can help simplify what is otherwise a complicated process. Remember, when dealing with the purchase or sale of a business, proper planning and professional advice are vital to ensure compliance and maximize tax benefits.