Extension of Time for Making Certain Elections

Internal Revenue Service Department of the Treasury
Washington, DC 20224
Number: 202504012
Release Date: 1/24/2025
Index Number: 1400Z.02-00, 9100.00-00
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Third Party Communication: None
Date of Communication: Not Applicable
Person To Contact:
---, ID No. ---
Telephone Number:
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Refer Reply To:
CC:ITA:B08
PLR-112785-24
Date:
October 22, 2024
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LEGEND
Taxpayer = ---
Advisor = ---
Accountant = ---
Date 1 = ---
Date 2 = ---
Date 3 = ---
Month 1 = ---
Manager = ---
Member 1 = ---
Member 2 = ---
State Z = ---
Year 1 = ---
Year 2 = ---
Year 3 = ---
Year 4 = ---
Dear ---:
This letter responds to Taxpayer’s request dated Date 1. Specifically, Taxpayer requests relief, under sections 301.9100-1 and 301.9100-3 of the Procedure and Administrative Regulations, for an extension of time to (1) make a timely election under section 1.1400Z2(d)-1(a)(2)(i) of the Income Tax Regulations to be certified as a qualified opportunity fund (QOF), as defined in section 1400Z-2(d) of the Internal PLR-112785-24 2 Revenue Code and (2) for Taxpayer to be treated as a QOF, effective as of Month 1, as provided by section 1400Z-2(d) and section 1.1400Z2(d)-1(a).

# FACTS

According to the information and representations provided, Taxpayer was organized as a limited liability company under the laws of State Z on Date 2 and is treated as a partnership for Federal income tax purposes. Taxpayer is a cash method taxpayer and Taxpayer’s annual accounting period is the calendar year. Taxpayer has two Members and is managed by Manager.
Members engaged Advisor to advise them on the disposition of certain real properties and the formation of a QOF. On Date 2, Members formed Taxpayer for the purposes of acquiring an interest in a property which qualified as qualified opportunity zone property (QOZ property) (within the meaning of 1.1400Z2(d)-1(c)(1)). Taxpayer had no items of income, gain, loss, expense, or credit during Year 2.
The Members have engaged Accountant to file their tax returns since Year 1. During
Year 2 (the year in which Taxpayer was formed) and Year 3, Accountant, Advisor, and
Manager engaged in numerous conversations about the formation and operation of
Taxpayer and Taxpayer believed that Accountant had all information necessary to timely file Taxpayer’s Year 2 Federal income tax return. However, Accountant failed to file Taxpayer’s Year 2 Federal income tax return, and neither Accountant nor Taxpayer were aware that Taxpayer’s election to self-certify as a QOF was due by the due date of Taxpayer’s Federal income tax return (including extensions).
Advisor discovered in Year 4 that Taxpayer’s Year 2 return had not been filed and as result, no QOF election had been made. Taxpayer subsequently engaged tax counsel to address the failure, resulting in this letter ruling request.
Taxpayer represents that the granting of relief under section 301.9100-3 of the
Procedure and Administration Regulations will not result in a lower tax liability for the year affected by the election.

# LAW AND ANALYSIS

Section 1400Z-2(e)(4)(A) of the Internal Revenue Code directs the Secretary to prescribe regulations as may be necessary to carry out the purposes of section 1400Z-2, including rules for the certification of QOFs. Section 1.1400A2(d)-1(a)(2) of the Income Tax Regulations provides the rules for an entity to self-certify as a QOF.
Section 1.400Z2(d)-1(a)(2)(i) provides that the self-certification of a QOF must be timely-filed and effectuated annually in such form and manner as may be prescribed by the Commissioner of the Internal Revenue in the Internal Revenue Service forms or instructions, or in publications or guidance published in the Internal Revenue Bulletin.
PLR-112785-24 3
To self-certify as a QOF, a taxpayer must file Form 8996, Qualified Opportunity Fund, with its tax return for the year to which the certification applies. The Form 8996 must be filed by the due date of the Federal income tax return (including extensions). The information provided indicates that Taxpayer did not file its Form 8996 by the due date of its Federal income tax return (including extensions) due to Accountant’s error.
Because section 1.1400Z2(d)-1(a)(2)(i) sets forth the manner and timing for an entity to self-certify as a QOF, these elections are regulatory elections, as defined in section 301.9100-1(b).
Sections 301.9100-1 through 301.9100-3(a) provide the standards that the
Commissioner will use to determine whether to grant an extension of time to make a regulatory election. Section 301.9100-3(a) provides that requests for extensions of time for regulatory elections (other than automatic extensions covered in section 301.9100-2) will be granted when the taxpayer provides evidence (including affidavits) to establish that the taxpayer acted reasonably and in good faith and the granting of relief will not prejudice the interests of the government.
Under section 301.9100-3(b) a taxpayer is deemed to have acted reasonably and in good faith if the taxpayer requests relief before the failure to make the regulatory election is discovered by the Service, or failed to make the election because, after exercising reasonable diligence (taking into account the taxpayer’s experience and the complexity of the return or issue), the taxpayer was unaware of the necessity for the election, or reasonably relied on a qualified tax professional, and the tax professional failed to make, or advise the taxpayer to make the election. However, a taxpayer is not considered to have reasonably relied on a qualified tax professional if the taxpayer knew or should have known that the professional was not competent to render advice on the regulatory election or was not aware of all relevant facts.
In addition, section 301.9100-3(b)(3) provides that a taxpayer is deemed not to have acted reasonable and in good faith if the taxpayer— i. seeks to alter a return position for which an accuracy-related penalty has been or could be imposed under section 6662 at the time the taxpayer requests relief, and the new position requires or permits a regulatory election for which relief is requested; ii. was fully informed in all material respects of the required election and related tax consequences but chose not to make the election; or iii. uses hindsight in requesting relief. If specific facts have changed since the original deadline that make the election advantageous to a taxpayer, the Service will not ordinarily grant relief.
PLR-112785-24 4
Section 301.9100-3(c)(1) provides that the Commissioner will grant a reasonable extension of time to make the regulatory election only when the interests of the government will not be prejudiced by the granting of relief.
Section 301.9100-3(c)(1)(i) provides that the interests of the government are prejudiced if granting relief would result in a taxpayer having a lower tax liability in the aggregate for all taxable years affected by the election than the taxpayer would have had if the election had been timely made (taking into account the time value of money).
Section 301.9100-3(c)(1)(ii) provides that the interests of the government are ordinarily prejudiced if the taxable year in which the regulatory election should have been made or any taxable year that would have been affected by the election had it been timely made are closed by the period of limitations on assessment under section 6501(a) before the taxpayer’s receipt of a ruling granting relief under this section.

# CONCLUSION

Based on the information provided, including affidavits and representations under penalties of perjury, we conclude that Taxpayer has acted reasonably and in good faith, and that granting a reasonable extension of time for Taxpayer to file Form 8996 will not prejudice the interests of the government. Accordingly, based solely on the facts and information submitted, and the representations made in the ruling request, we grant Taxpayer an extension of 60 days from the date of this letter ruling to file a Form 8996 with Taxpayer’s federal tax return, to make the election to self-certify as a QOF under section 1400Z-2 and section 1.1400Z2(d)-1(a)(2)(i). The election must be made on a completed Form 8996 attached to Taxpayer’s tax return or administrative-adjustment request (as applicable).

# CAVEATS

This ruling is based upon facts and representations submitted by Taxpayer and accompanied by a penalty of perjury statement executed by an appropriate party. This office has not verified any of the material submitted in support of the request for a ruling.
However, as part of an examination process, the Service may verify the factual information, representations, and other data submitted.
Except as expressly provided herein, no opinion is expressed or implied concerning the tax consequences of any aspect of any transaction or item discussed or referenced in this letter. Specifically, we express no opinion, either express or implied, concerning whether any investments made into Taxpayer are qualifying investments as defined in section 1.1400Z2(a)-1(b)(34) or whether the taxpayer meets the requirements under section 1400Z-2 and the regulations thereunder to be a QOF. Further, we also express no opinion on whether any interest owned in any entity by Taxpayer qualifies as qualified opportunity zone property, as defined in section 1400Z-2(d)(2), or whether such entity would be treated as a qualified opportunity zone business, as defined in PLR-112785-24 5 section 1400Z-2(d)(3). We express no opinion regarding the tax treatment of the instant transaction under the provisions of any other sections of the Code or regulations that may be applicable, or regarding the tax treatment of any conditions existing at the time of, or effects resulting from, the instant transaction.
This ruling is directed only to the taxpayer requesting it. Section 6110(k)(3) of the Code provides that it may not be used or cited as precedent.
In accordance with the Power of Attorney on file with this office, a copy of this letter is being sent to your authorized representative.
A copy of this letter must be attached to any income tax return to which it is relevant.
Alternatively, taxpayers filing their returns electronically may satisfy this requirement by attaching a statement to their return that provides the date and control number of the letter ruling.
Sincerely,
Shareen S. Pflanz
Branch Chief, Branch 8
Office of Associate Chief Counsel
(Income Tax & Accounting) cc: ---