Form 8023 Filing Checklist

Miss the Form 8023 deadline, use the wrong election, or leave out a needed signature, and the Section 338 election may fail.

If I had to boil this article down to a short checklist, I’d focus on five things:

• Confirm the deal is a qualified stock purchase, which usually means 80% or more of vote and value bought within 12 months
• Pick the right election: Section 338(g) or Section 338(h)(10)
• Gather the core facts early: names, EINs, closing date, stock percentage, purchase price terms, and any seller or foreign-target statements
• File Form 8023 by the 15th day of the 9th month that starts after the month of the acquisition date
• Make sure Form 8883 and the tax return use the same numbers and asset allocation

Here’s the short version in plain English: Form 8023 is how a buyer makes a Section 338 election after buying stock, so the deal is taxed more like an asset purchase. That can change asset basis, depreciation, amortization, and the reporting that follows. The article’s main point is simple: get eligibility, signatures, timing, and support files right the first time.

A few points stand out:

• 338(g) is buyer-only
• 338(h)(10) is joint, so buyer and seller both need to be lined up
• The deadline is based on the closing date, not the signing date
• Proof of filing matters, so keep mail, courier, or fax records
• Form 8023 and Form 8883 should be treated as one package, not two separate tasks

Item	What to check
Deal test	80%+ acquired within 12 months
Election type	338(g) vs. 338(h)(10)
Signers	Buyer only, or buyer + seller
Filing date	15th day of the 9th month after the acquisition month
Follow-up	Match Form 8883, return reporting, and notices

If you want one takeaway, it’s this: a clean Form 8023 filing is mostly about timing, matching data, and complete records. The rest of the article walks through those steps in order.

1. Confirm Eligibility Before Preparing Form 8023

Before you start filling out Form 8023, make sure the deal meets the rules for a Section 338 election.

Qualified Stock Purchase Checklist

A QSP usually means the buyer acquired at least 80% of the target's voting power and value within a 12-month period. Check the ownership percentages and the timing first, then move on to Form 8023.

Once you've confirmed QSP status, the next step is to pick the election type and line up the right signers.

Choose Between Section 338(g) and Section 338(h)(10)

You also need to confirm whether the deal will use Section 338(g) or the joint Section 338(h)(10) election, because that choice decides who must sign Form 8023.

Under Section 338(h)(10), a stock purchase can be treated as an asset purchase for federal tax purposes. That gives the buyer a stepped-up tax basis, and the election must be made jointly by both the buyer and the seller.

So at this stage, pin down whether the filing will be:

• a buyer-only Section 338(g) election
• a joint Section 338(h)(10) election

Identify Required Parties and Signers

The election type controls the signature rules. For Section 338(g), the buyer signs. For Section 338(h)(10), both the buyer and seller must sign.

Make sure those authorized signers are identified well before the filing deadline. It also helps to assign Form 8023 signing duties in the purchase agreement, so no one is scrambling at the last minute.

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2. Gather the Information and Documents Needed for Form 8023

Once eligibility is set, pull together everything Form 8023 needs before the deadline. These records do more than help you fill out the form. They also back up the election if the IRS comes back later and asks questions.

Target and Purchaser Data Fields Checklist

Form 8023 starts with plain but critical details: correct entity identification. Gather the legal names, EINs, and primary addresses for both the purchaser and the target from the purchase agreement’s preamble and recitals. Then check those details against the target’s stock ledger and tax workpapers.

Why be so careful here? Because even a small mismatch between the purchase agreement and the target’s official records can cause trouble later.

You’ll also need to pin down:

• the exact acquisition date
• the percentage of stock acquired
• the target’s jurisdiction of organization
• the target’s tax year-end
• whether the target was part of an affiliated group that filed a consolidated return before closing

That last item matters because it can affect who must sign the form.

Document Section	Data Points to Collect
Preamble / Recitals	Legal names, EINs, primary addresses
Definitions	Exact acquisition date, Qualified Stock Purchase details
Purchase Price	Total consideration, working capital adjustments, escrow/holdback amounts, and any earn-out terms
Reps & Warranties	Jurisdiction of organization, tax year-end, affiliated group status
Closing Conditions	Confirmation of the closing date

Reconcile each figure against the purchase agreement, stock ledger, tax workpapers, and closing memo. It’s a bit like balancing a checkbook: if one number is off, the rest can start to wobble.

Election Boxes, Statements, and Attachments Checklist

After you’ve pinned down the data fields, make sure the right election box is checked on the form. A Section 338(g) election and a Section 338(h)(10) election use different boxes. Check the wrong one, and you change the legal effect of the filing.

For a Section 338(h)(10) election, confirm the seller’s cooperation and signatures before filing. If you’re dealing with a foreign target and extra statements are required, attach the needed U.S. shareholder information. You should also use the target’s cap table and foreign structure charts to support those attachments.

Attachment Type	Domestic Target	Foreign Target
Election box on Form 8023	Required	Required
U.S. shareholder statements	Not required	Required for certain structures
Foreign structure charts / cap table	Not required	Use to support required foreign-structure statements

Coordinate Form 8023 Inputs with Form 8883 Support

Form 8023 and Form 8883 need to line up. The same purchase price figures should flow into both forms. Form 8883 applies the Section 1060 residual method across seven asset classes, so the numbers need to match all the way through.

If the purchase agreement already fixes the agreed allocation across asset classes, that can stop the buyer and seller from filing conflicting figures. Hold on to the tax model, valuation support, and purchase price allocation workpapers that support Form 8883.

With the form data and support lined up, the next step is the filing deadline and proof-of-filing process.

3. File Form 8023 on Time and Keep Proof of Filing

Deadline and Timing Checklist

Form 8023 is generally due by the 15th day of the 9th month beginning after the month that includes the acquisition date. Count from the closing date, not the signing date. Two mistakes show up all the time: using the signing date and counting from the wrong month.

Here’s the easy way to think about it. If a deal closes on March 18, you start counting from April. Nine months later, the filing deadline lands on December 15 of that same year. Give yourself extra time before the deadline in case mail or courier delivery slows down.

Also note: the election is generally irrevocable once properly filed. If you miss the deadline, you can lose the election. Relief for late filing under Treas. Reg. § 301.9100 is limited, so it should not be part of the plan. Once the filing is in place, the focus shifts to proof-of-filing records and post-filing compliance.

Submission, Signatures, and Mailing Package Checklist

File the original Form 8023 with the IRS Service Center. Attach copies only when the instructions call for them. Before you send anything, check the latest Form 8023 instructions for the current mailing address. IRS filing addresses do change, and using an old one is an easy way to create a mess.

The IRS also allows fax filing to a designated number, 844-253-9765, with a 100-page limit and one form per fax transmission. Check the current fax rules right before filing.

Signature rules depend on the election type:

• A Section 338(g) election requires the purchasing corporation's signature.
• A Section 338(h)(10) election requires joint signatures from the purchasing corporation and the applicable selling parent, affiliate, or all S corporation shareholders.
• If there are more required signers than the form can hold, attach a supplemental signature page listing each signer's name, title, and the entity represented.

Before filing, make a final pass through the package. Confirm that the right election box is checked, all names and taxpayer identification numbers match the deal documents, all required dates are included, and the attachments sit in a clear order behind the signed original.

Proof of Filing and Retention File Checklist

Use certified mail or an IRS-designated private delivery service (PDS) to send the package, such as qualifying FedEx, UPS, or DHL services. Under IRC § 7502, timely mailing through these methods counts as timely filing, and the postmark or registration date is prima facie evidence of delivery. Ordinary mail and non-designated delivery services do not give you that same protection.

After sending the form, put together a complete proof-of-filing file and save it in a dedicated digital deal folder. That file should include:

• The executed Form 8023, all attachments, a full copy of everything sent to the IRS, shareholder statements, and any supplemental signature pages
• The certified mail receipt, courier tracking confirmation, or fax confirmation if fax filing was used
• The envelope or shipping label
• Internal tax memos showing how the deadline was calculated and when the package was sent
• Any IRS correspondence received after filing

If the IRS later questions timing or completeness, this file can make all the difference. It also helps to assign one person on the deal team to verify that the filing package, closing binder, and tax workpapers all use the same acquisition date and entity names before moving to post-filing compliance.

With the filing package retained, the next step is aligning the election with Form 8883 and return filings.

4. Complete Post-Filing Section 338 Compliance

Once Form 8023 has been filed, the job shifts from sending the election to making sure the return reporting lines up and any notice items are handled.

Form 8883 and Tax Return Alignment Checklist

After filing Form 8023, confirm that Form 8883 matches the election and is attached to the correct federal return. Form 8883 should tie back to the Section 338 workpapers, and the allocation numbers should match exactly. The buyer's and seller's allocation numbers also need to match exactly.

For Section 197 intangibles, report amortization on Form 4562 using the required 15-year straight-line method.

Then check whether any shareholder notices or cross-border follow-up filings are still required.

Shareholder Notices and Foreign-Structure Follow-Up Checklist

After filing, send any required shareholder notices and complete any follow-up filings tied to S corporation or consolidated-group deals. For Section 338(h)(10) elections, confirm that both parties completed the joint filing. For cross-border deals, confirm whether the applicable rules require any extra reporting or notice steps.

Risk Review Before Closing the File

Before closing the file, verify that Form 8023, Form 8883, and the purchase agreement all match. Record any discrepancies and keep the signed forms and proof of filing in the closing file. Record any discrepancies before the file is archived.

Conclusion: A Practical Form 8023 Checklist for Deal Teams

A clean Form 8023 filing comes down to five steps, in order: confirm QSP status, choose the election type, gather the needed data and attachments, file on time, and line up Form 8883 with shareholder notices.

Think of this as the last pre-filing check for tax, legal, and deal teams.

One problem shows up again and again: mismatched purchase price allocations between buyer and seller. That can draw IRS scrutiny.

Teams that pull target data into one place early have a much better shot at keeping Form 8023 and Form 8883 in sync. When tax inputs are aligned early, there’s usually less cleanup after closing.

It also helps when both sides agree on deal terms early. That cuts down on conflicts between Form 8023 and Form 8883. In practice, it’s best to treat Form 8023 and Form 8883 as one coordinated filing package.

FAQs

What counts toward the 80% qualified stock purchase test?

For a Section 338 election, the corporate buyer must acquire at least 80% of the target company’s stock. That test applies to both total voting power and total fair market value.

Your documentation should clearly track all equity the buyer acquires. That way, you can show the IRS that the 80% threshold has been met and that the deal can be treated as an asset purchase for federal tax purposes.

How do I know whether to use Section 338(g) or 338(h)(10)?

It depends on how the deal is set up and whether both sides agree. A Section 338(h)(10) election is a joint buyer-seller election that lets a stock purchase be treated as an asset purchase for federal tax purposes.

To qualify, the buyer has to acquire at least 80% of the target's stock. Since this election can lead to major tax effects for both parties, talk with a tax advisor about your specific deal.

What happens if Form 8023 or Form 8883 doesn't match the deal documents?

If Form 8023, Form 8883, or similar acquisition filings don't line up with the deal documents, that can draw IRS attention and may trigger an audit. Mixed signals in those filings can also lead to penalties and force changes to the reported asset values.

That can leave both the buyer and seller facing unexpected tax bills. The best move is simple: check that the filings match the agreed purchase price and asset allocations in the final acquisition documents before anything is submitted.

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