Instructions for Form 8275 (8/2008)

Purpose of Form

Form 8275 is used by taxpayers and tax return preparers to disclose items or positions, except those taken contrary to a regulation, that are not otherwise adequately disclosed on a tax return to avoid certain penalties. The form is filed to avoid the portions of the accuracy-related penalty due to disregard of rules or to a substantial understatement of income tax for non-tax shelter items if the return position has a reasonable basis. It can also be used for disclosures relating to preparer penalties for understatements due to unreasonable positions or disregard of rules.

The portion of the accuracy-related penalty attributable to the following types of misconduct cannot be avoided by disclosure on Form 8275.

Negligence.
Disregard of regulations.
Any substantial understatement of income tax on a tax shelter item.
Any substantial valuation misstatement under chapter 1.
Any substantial overstatement of pension liabilities.
Any substantial estate or gift tax valuation understatements.

Who Should File

Form 8275 is filed by individuals, corporations, pass-through entities, and income tax return preparers. If you are disclosing a position taken contrary to a regulation, use Form 8275-R, Regulation Disclosure Statement, instead of Form 8275.

For items attributable to a pass-through entity, disclosure should be made on the tax return of the entity. If the entity does not make the disclosure, the partner (or shareholder, etc.) may make adequate disclosure of these items.

Exception to filing Form 8275. Guidance is published annually in a revenue procedure in the Internal Revenue Bulletin. This can be found on the Internet at www.irs.gov. The revenue procedure identifies circumstances when an item reported on a return is considered adequate disclosure for purposes of the substantial understatement aspect of the accuracy-related penalty and for avoiding the preparer's penalty relating to understatements due to unreasonable positions. See the Example below. You do not have to file Form 8275 for items that meet the requirements listed in this revenue procedure.

Example.

Generally, you will have met the requirements for adequate disclosure of a charitable contribution deduction if you complete the contributions section of Schedule A (Form 1040) and supply all the required information. If you make a contribution of property other than cash that is over $500, the form required by the Schedule A instructions must be attached to your return.

How To File

File Form 8275 with your original tax return. Keep a copy for your records. You may be able to file Form 8275 with an amended return. See Regulations sections 1.6662-4(f) and 1.6664-2(c)(3) for more information.

To make adequate disclosure for items reported by a pass-through entity, you must complete and file a separate Form 8275 for items reported by each entity.

Carrybacks, carryovers, and recurring items. Carryover items must be disclosed for the tax year in which they originated. You do not have to file another Form 8275 for those items for the tax years in which the carryover is taken into account.

Carryback items must be disclosed for the tax year in which they originated. You do not have to file another Form 8275 for those items for the tax years in which the carryback is taken into account.

However, if you disclose items of a recurring nature (such as depreciation expense), you must file Form 8275 for each tax year in which the item occurs.

If you are disclosing a position that is contrary to a rule, and the position relates to a reportable transaction as defined in Regulations section 1.6011-4(b), you must also make the disclosure required by Regulations section 1.6011-4(b). See Form 8886, Reportable Transaction Disclosure Statement, its instructions, and
Rev. Proc. 2004-45, 2004-31 I.R.B. 140, available at www.irs.gov/irb/2004-31_IRB/ar19.html.

Accuracy-Related Penalty

Generally, the accuracy-related penalty is 20% of any portion of a tax underpayment attributable to:

Negligence or disregard of rules or regulations,
Any substantial understatement of income tax,
Any substantial valuation misstatement under chapter 1 of the Internal Revenue Code,
Any substantial overstatement of pension liabilities, or
Any substantial estate or gift tax valuation understatement.

However, the penalty is 40% of any portion of a tax underpayment attributable to one or more gross valuation misstatements in (3), (4), or (5) above if the applicable dollar limitation under section 6662(h)(2) is met.

Reasonable basis. Generally, you can avoid the disregard of rules and substantial understatement portions of the accuracy-related penalty if the position is adequately disclosed and the position has at least a reasonable basis. Reasonable basis is a relatively high standard of tax reporting that is significantly higher than not frivolous or not patently improper. The reasonable basis standard is not satisfied by a return position that is merely arguable.

The penalty will not be imposed on any part of an underpayment if there was reasonable cause for your position and you acted in good faith in taking that position.

If you failed to keep proper books and records or failed to substantiate items properly, you cannot avoid the penalty by disclosure.

Substantial Understatement

An understatement is the excess of:

The amount of tax required to be shown on the return for the tax year, over
The amount of tax shown on the return for the tax year, reduced by any rebates.

There is a substantial understatement of income tax if the amount of the understatement for any tax year exceeds the greater of:

10% of the tax required to be shown on the return for the tax year, or
$5,000 ($10,000 for a corporation other than an S corporation or a personal holding company as defined in section 542).

An understatement of a corporation (other than an S corporation or a personal holding company) is substantial if it exceeds the lesser of:

10% of the tax required to be shown on the return for the tax year (or, if greater, $10,000), or
$10,000,000.

For purposes of the substantial understatement portion of the accuracy-related penalty, the amount of the understatement will be reduced by the part that is attributable to the following items.

An item (other than a tax shelter item) for which there was substantial authority for the treatment claimed at the time the return was filed or on the last day of the tax year to which the return relates.
An item (other than a tax shelter item) that is adequately disclosed on this form if there is a reasonable basis for the tax treatment of the item. (In no event will a corporation be treated as having a reasonable basis for its tax treatment of an item attributable to a multi-party financing transaction entered into after August 5, 1997, if the treatment does not clearly reflect the income of the corporation.)

For corporate tax shelter transactions (and for tax shelter items of other taxpayers for tax years ending after October 22, 2004), the only exception to the substantial understatement portion of the accuracy-related penalty is the reasonable cause exception. For more details, see section 6662(d) and Regulations section 1.6664-4.

Tax shelter items. A tax shelter, for purposes of the substantial understatement portion of the accuracy-related penalty, is a partnership or other entity, plan, or arrangement, with a significant purpose to avoid or evade federal income tax. For transactions on or before August 5, 1997, a tax shelter is a partnership or other entity, plan, or arrangement, whose principal purpose is to avoid or evade federal income tax.

A tax shelter item is any item of income, gain, loss, deduction, or credit that is directly or indirectly attributable to the principal or significant purpose of the tax shelter to avoid or evade federal income tax.

Tax Return Preparer Penalties

A preparer who files a return or claim for refund is subject to a penalty in an amount equal to the greater of $1000 or 50 percent of the income derived (or to be derived) by the tax return preparer, with respect to the return or claim, for taking a position which understates any part of the liability if:

There is not a reasonable belief that the position would more likely than not be sustained on its merits,
The preparer knew or reasonably should have known of the position, and
The position was not disclosed as provided in section 6662(d)(2)(B)(ii); or
There was no reasonable basis for the position.

The penalty will not apply if it can be shown that there was reasonable cause for the understatement and that the preparer acted in good faith.

In cases where any part of the understatement of the liability is due to a willful attempt by the return preparer to understate the liability, or if the understatement is due to reckless or intentional disregard of rules or regulations by the preparer, the preparer is subject to a penalty equal to the greater of $5,000 or 50 percent of the income derived, or to be derived, by the tax return preparer with respect to the return or claim. This penalty shall be reduced by the amount of the penalty paid by such person for taking an unreasonable position, or a position with no reasonable basis, as described immediately above.

A preparer is not considered to have recklessly or intentionally disregarded a rule if a position is adequately disclosed and is not frivolous.

Note.

For more information about the accuracy-related penalty and preparer penalties, and the means of avoiding these penalties, see the regulations under section 6662, 6664, and 6694.

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