SECTION 5. PROCEDURE TO

OBTAIN AN AUTOMATIC EXTENSION UNDER § 301.9100–3

To obtain an automatic extension under § 301.9100–3 to file an election under § 338, the required filer or filers must file Form 8023 no later than 12 months after the discovery of the failure to file the election. In addition, a single statement, filed under penalties of perjury by all required

filers, must be attached to the Form 8023. For example, in the case of an election under § 338(h)(10) in which Corporation X buys all the stock of Corporation Y, an S corporation, from its two shareholders, A and B, in a qualified stock purchase, a single statement, signed under penalties of perjury by A, B, and the individual who acts on behalf of Corporation X regarding tax matters, must be attached to the Form 8023. The statement must include the information set forth in sections 5.01 through 5.15 of this revenue procedure, which is subject to verification on examination, as provided by section 6 of this revenue procedure. In the case of an election for multiple targets for which only one Form 8023 is required, only a single statement is required.

.01 The following heading typed or legibly printed at the top of the statement: “AUTOMATIC EXTENSION OF TIME TO FILE FORM 8023 FILED PURSUANT TO REV. PROC. 2003–33.”

.02 The name, address, and taxpayer identification number of each required filer.

.03 The name, address, and taxpayer identification number, if any, of the target or targets.

.04 (1) The date that the failure to timely file the election was discovered and (2) a representation that Form 8023 is being filed no later than 12 months after the discovery of the failure to timely file the election.

.05 A representation that no person filed a United States tax return treating the transaction or transactions constituting the qualified stock purchase in a manner that is inconsistent with the tax consequences that would have resulted from the election for which the extension is sought under this revenue procedure. If this representation cannot be made, identify any inconsistent United States tax returns by the name and taxpayer identification number of the taxpayer that filed them, and by form number and year, and submit a representation that all such returns will be amended to eliminate this inconsistency. Further, submit information explaining why any previous filing that is inconsistent with the election should not be considered evidence of hindsight.

.06 In the case of a foreign target, a representation that the target was not a controlled foreign corporation, a passive foreign

2003–16 I.R.B. 804 April 21, 2003

made is being examined by a director, or is being considered by an appeals office or a federal court.