SECTION 6. EFFECT ON OTHER

DOCUMENTS

Rev. Proc. 2004–16 is modified and superseded.

DRAFTING INFORMATION

The principal authors of this revenue procedure are Bruce Perlin and Linda Marshall, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities) and Larry Isaacs of the Employee Plans, Tax Exempt and Government Entities Division. For further information regarding this revenue procedure as it pertains to § 402(a), please contact Bruce Perlin or Linda Marshall at (202) 622–6090 (not a toll-free number) or Larry Isaacs at (202) 283–9888 (not a toll-free number) or contact the Employee Plans’ taxpayer assistance telephone service at (877) 829–5500 (a toll-free number) between the hours of 8:00 a.m. and 6:30 p.m. Eastern Time, Monday through Friday. For further information regarding this revenue procedure as it pertains to § 79, please contact Betty Clary of the Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities) at (202) 622–6080 (not a toll-free number). For further information regarding this revenue procedure as it pertains to §§ 83 and 402(b), please contact Robert Misner of the Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities) at (202) 622–6030 (not a toll-free number).

2005–17 I.R.B. 965 April 25, 2005

of perjury by the taxpayer and, if applicable, by the paid preparer preparing the Form 8886 or amended return:

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 taxpayer) is based on all information of which the preparer has any knowledge. (2) Taxpayers under an examination by the IRS or under Appeals consideration . A taxpayer under examination by the IRS or under Appeals consideration for any taxable year for which the taxpayer participated in an undisclosed listed transaction also must submit a copy of the Form 8886, prepared in accordance with the requirements of subsection (1) above, to the IRS examiner or Appeals officer in addition to the other disclosure requirements of this section.

.02 Disclosure of an undisclosed listed transaction that is designated as a listed transaction subsequent to the filing of a tax return . If the Secretary identifies a transaction as a listed transaction after the date on which the taxpayer files a tax return for a taxable year during which the taxpayer participated in the listed transaction (a “post-filing listed transaction”), the taxpayer must disclose the transaction under section 6011 in accordance with the regulations thereunder. See Treas. Reg. § 1.6011–4(e)(2)(i). The exception under section 6501(c)(10) to the general period of limitations on assessment is applicable to a post-filing listed transaction unless the taxpayer discloses the listed transaction in accordance with the regulations under section 6011, which currently require that the taxpayer attach the Form 8886 to its next filed return. If the obligation to disclose a post-filing listed transaction, as prescribed by the regulations under section 6011, arises after the expiration of the period of limitations on assessment for a taxable year in which the taxpayer participated in the post-filing listed transaction, section 6501(c)(10) will not operate to reopen or extend the limitations period. Conversely, if the limitations period on assessment has not expired, and the taxpayer fails to disclose the post-filing listed transaction as required by the regulations under

Secretary as a tax avoidance transaction for purposes of section 6011. See also Treas. Reg. § 1.6011–4(b)(2). For a list of transactions identified by the Secretary as listed transactions, go to the IRS web page at www.irs.gov/businesses/corporations and click on Abusive Tax Shelters and Transactions. See also Notice 2004–67, 2004–41 I.R.B. 600 (October 12, 2004), and subsequent published guidance.

.04 Taxpayers are required under section 6011, and the regulations thereunder, to disclose certain information regarding each listed transaction in which the taxpayer has participated, as defined in section 1.6011–4(c)(3). Generally, if a taxpayer is required to disclose information regarding the transaction, the taxpayer must complete Form 8886, Reportable Transaction Disclosure Statement, for each listed transaction and attach the Form 8886 to the taxpayer’s return for each year in which the taxpayer participated in the listed transaction. See Treas. Reg. § 1.6011–4(e). A copy of the disclosure statement must also be sent to the Office of Tax Shelter Analysis (OTSA) at the same time that any disclosure statement is first filed by the taxpayer. See Treas. Reg. § 1.6011–4(d) and (e). The Form 8886 must provide the information requested and be completed in accordance with the instructions to the form. See Treas. Reg. § 1.6011–4(d).

.05 Section 6112 requires material advisors to maintain lists of investors and other information with respect to reportable transactions, including listed transactions, and to furnish that information to the Secretary upon request. The term “material advisor” is defined in section 301.6112–1(c)(2). See Notice 2004–80, 2004–50 I.R.B. 963 (December 13, 2004), amplified by Notice 2005–17, 2005–8 I.R.B. 606 (February 22, 2005), clarified and modified by Notice 2005–22, 2005–12 I.R.B. 756 (March 21, 2005), and section 301.6112–1 for guidance relating to the preparation, content, maintenance, retention, and furnishing of lists by material advisors.