PLR 200125068: Extra time granted for a section 338(h)(10) election

Plain-English summary

A foreign corporate purchaser and the sellers missed the deadline to elect deemed asset sale treatment for one acquired S corporation. The purchaser and sellers said they had relied on tax professionals to make the election. The IRS found that they acted reasonably and in good faith and that granting relief would not prejudice the government. It gave them 30 days from the letter's issuance to file a new section 338(h)(10) election on Form 8023. They also had to file any necessary returns or amended returns within 120 days, and their aggregate tax liability could not be lower than if the election had been timely made. The IRS did not decide whether the stock acquisition or the election otherwise qualified for section 338(h)(10) treatment.

Ruling snapshot

• Question: Could the purchaser and sellers file a late section 338(h)(10) election for the acquired S corporation?
• Outcome: Approved: 30 days of additional time, subject to stated filing and tax liability conditions.
• Key authorities: IRC § 338(h)(10); Treas. Reg. §§ 1.338(h)(10)-1(d), 301.9100-1, 301.9100-3.

Full text (IRS public release)

Internal Revenue Service Department of the Treasury

Number: 200125068 Washington, DC 20224
Release Date: 6/22/2001
Index Numbers: 338.01-02 Person to Contact:
9100.07-00
Telephone Number:

Refer Reply To:
CC:CORP:1 - PLR-127296-00
Date:
March 26, 2001

LEGEND

Purchaser =

Target 1 =

Target 2 =

Target 3 =

Country A =

Date 1 =

Date 2 =

Date 3 =

Date 4 =

Date 5 =

Year 1 =

Sellers =
PLR-127296-00
-2-

X
=

Tax Representative =

Company Officials =

Tax Professionals =

Dear:

This letter responds to your request dated November 21, 2000, requesting an extension of time under §§ 301.9100-1 through 301.9100-3 of the Procedure and Administration Regulations on behalf of Purchaser and Sellers to make an election. Specifically, Purchaser and Sellers want to make a “§ 338(h)(10) election” under §§ 338(g) and 338(h)(10) of the Internal Revenue Code and § 1.338(h)(10)-1(d) of the Income Tax Regulations (the “Election”) with respect to Purchaser’s purchase of Target 1 stock on Date 1. (All citations in this letter to regulations under § 338 are to regulations in effect on Date 1.) Additional information regarding the request was received in letters dated December 19, 2000, March 5, 2001 and March 20, 2001. The material information submitted is summarized below.

Purchaser is a Country A corporation formed in Year 1 for the purpose of acquiring stock of Target 1, Target 2 and Target 3 (together, the “Targets”). Purchaser uses the accrual method of accounting and is treated as a controlled foreign corporation under § 957 of the Code. Prior to their acquisitions, Targets were S corporations for federal income tax purposes and were owned by Sellers (individuals and grantor trusts treated for federal tax purposes as owned by individuals). Targets used the accrual method of accounting.

On Date 1, Purchaser acquired X% of each of the Targets’ stock from Sellers for cash in a taxable transaction. On Date 2, Target 2 and Target 3 were merged into Target 1. It is represented that: (1) Purchaser was not related to Sellers within the meaning of § 338(h)(3); and (2) Purchaser’s acquisition of the stock of each of the Targets qualified as a "qualified stock purchase," as defined in § 338(d)(3).

Purchaser and Sellers intended to file the Election, which was due on Date 3.
However, for various reasons the Election was not filed. On Date 4 (after the due date of the Election), Purchaser and Sellers discovered that the Election was not filed and decided that a petition for relief under § 301.9100 was appropriate. On Date 5, Tax Representative was engaged to assist in the preparation of the request which was filed shortly thereafter. The period of limitations on assessment under § 6501(a) has not
PLR-127296-00
-3-

expired for Purchaser’s, Target 1's or any of the Sellers’ taxable years in which the acquisition occurred, the taxable years in which the Election should have been filed, or any taxable years that would have been affected by the Election had it been timely filed.

Section 338(a) permits certain stock purchases to be treated as asset acquisitions if: (1) the purchasing corporation makes or is treated as having made a "§ 338 election" or a “§ 338(h)(10) election”; and (2) the acquisition is a "qualified stock purchase." Section 1.338(h)(10)-1(d)(3) provides that if a § 338(h)(10) election is made for Target, a “§ 338 election” is deemed made for Target. Section 338(d)(3) defines a "qualified stock purchase" as any transaction or series of transactions in which stock (meeting the requirements of § 1504(a)(2)) of 1 corporation is acquired by another corporation by purchase during the 12-month acquisition period.

Section 338(h)(3)(A) provides that the term "purchase" means any acquisition of stock, but only if: (i) the basis of the stock in the hands of the purchasing corporation is not determined in whole or in part by reference to the adjusted basis of such stock in the hands of the person from whom acquired, or under § 1014(a) (relating to property acquired from a decedent); (ii) the stock is not acquired in an exchange to which §§ 351, 354, 355, or 356 applies and is not acquired in any other transaction described in regulations in which the transferor does not recognize the entire amount of the gain or loss realized on the transaction; and (iii) the stock is not acquired from a person the ownership of whose stock would, under § 318(a) (other than paragraph (4) thereof), be attributed to the person acquiring such stock.

Section 338(h)(10) permits the purchasing and selling corporations to elect jointly to treat the target corporation as deemed to sell all of its assets and distribute the proceeds in complete liquidation. The sale of stock included in the qualified stock purchase generally is ignored. A § 338(h)(10) election may be made for target only if it is a member of a selling consolidated group, a member of a selling affiliated group filing separate returns, or an S corporation. Section 1.338(h)(10)-1(a). Gain or loss on the deemed sale is included in the consolidated return of the selling group (unless the target corporation is a member of a selling affiliated group filing separate returns or an S corporation). Section 1.338(h)(10)-1(d) provides that a § 338(h)(10) election may be made for the target corporation if the purchasing corporation makes a "qualified stock purchase" of the target corporation stock. Section 1.338(h)(10)-1(d)(3) provides that if a § 338(h)(10) election is made for the target corporation, it is irrevocable.

Section 1.338(h)(10)-1(d)(2) provides that a § 338(h)(10) election is jointly made by a purchaser and the selling consolidated group (or selling affiliate or S corporation shareholders) on Form 8023 in accordance with the instructions to the form. The regulations further provide that the election must be made not later than the 15th day of the ninth month beginning after the month in which the acquisition occurs. The instructions to Form 8023 provide that a § 338(h)(10) election must be made jointly by the purchasing corporation and the common parent of the selling consolidated group (or
PLR-127296-00
-4-

selling affiliate or S corporation shareholders). The instructions provide that the form must be signed by a person authorized to act on behalf of each corporation, and if made for an S corporation it must be signed by each S corporation shareholder who sells target stock in the qualified stock purchase. The instructions further provide that the signatures, dates and titles (if applicable) of those persons must be provided in a "signature attachment," and they provide specific details as to the preparation of the “signature attachment" and its attachment to Form 8023.

Section 1.338-1(g)(3) provides that the United States shareholders (as defined in § 951(b)) of a foreign purchasing corporation that is a controlled foreign corporation (as defined in § 957, taking into account § 953(c)) may file a statement of "§ 338 election" on behalf of the purchasing corporation if the purchasing corporation is not required under § 1.6012-2(g) (other than § 1.6012-2(g)(2)(i)(b)(2)) to file a United States income tax return for its taxable year that includes the acquisition date. Form 8023 must be filed as described in the form and its instructions, and also must be attached to Form 5471 filed with respect to the purchasing corporation by each United States shareholder for the purchasing corporation.

Under § 301.9100-1(c), the Commissioner has discretion to grant a reasonable extension of time to make a regulatory election, or a statutory election (but no more than six months except in the case of a taxpayer who is abroad), under all subtitles of the Internal Revenue Code except subtitles E, G, H, and I.

Section 301.9100-1(b) defines the term "regulatory election" as including an election whose due date is prescribed by a regulation, revenue ruling, revenue procedure, notice, or announcement. Sections 301.9100-1 through 301.9100-3 provide the standards the Commissioner will use to determine whether to grant an extension of time to make a regulatory election. Section 301.9100-1(a). Section 301.9100-2 provides automatic extensions of time for making certain elections. Requests for relief under § 301.9100-3 will be granted when the taxpayer provides evidence to establish that the taxpayer acted reasonably and in good faith, and that granting relief will not prejudice the interests of the government. Section 301.9100-3(a).

In this case, the time for filing the Election is fixed by the regulations (i.e., § 1.338(h)(10)-1(d)). Therefore, the Commissioner has discretionary authority under § 301.9100-1 to grant an extension of time for Purchaser and Sellers to file the Election, provided Purchaser and Sellers show they acted reasonably and in good faith, the requirements of §§ 301.9100-1 and 301.9100-3 are satisfied, and granting relief will not prejudice the interests of the government.

Information, affidavits, and representations submitted by Purchaser, Target 1, Company Officials and Tax Professionals explain the circumstances that resulted in the failure to timely file a valid Election. The information establishes that competent tax professionals were responsible for the Election and were aware of all relevant facts.
PLR-127296-00
-5-

The information also establishes that Company Officials, Purchaser and Sellers relied on the tax professionals to make the Election, and that the interests of the government will not be prejudiced if relief is granted. See § 301.9100-3(b)(1)(v).

Based on the facts and information submitted, including the representations made, we conclude that Purchaser and Sellers have shown they acted reasonably and in good faith, the requirements of §§ 301.9100-1 and 301.9100-3 are satisfied, and granting relief will not prejudice the interests of the government. Accordingly, an extension of time is granted under § 301.9100-1, until 30 days from the date of issuance of this letter, for Purchaser and Sellers to file the Election with respect to the acquisition of the stock of Target 1, as described above.

The above extension of time is conditioned on (1) the filing, within 120 days of the issuance of this letter, of all returns and amended returns (if any) necessary to report the transaction in accordance with the Election, and (2) the taxpayers' (Purchaser’s, Target 1's and Sellers’) tax liability (if any) being not lower, in the aggregate, for all years to which the Election applies, than it would have been if the Election had been timely made (taking into account the time value of money). No opinion is expressed as to the taxpayers’ tax liability for the years involved. A determination thereof will be made by the applicable Director’s office upon audit of the Federal income tax returns involved. Further, no opinion is expressed as to the Federal income tax effect, if any, if it is determined that the taxpayers’ tax liability is lower. Section 301.9100-3(c).

Purchaser and Sellers must file the Election in accordance with § 1.338(h)(10)-1(d). That is, a new election on Form 8023 must be executed on or after the date of this letter, which grants an extension, and filed in accordance with the instructions to the form. A copy of this letter must be attached to the election form. Purchaser and Sellers must file or amend, as applicable, their returns to report the transaction as a § 338(h)(10) transaction for the taxable year in which the transaction was consummated (and for any other affected taxable year), and to attach to the returns a copy of this letter and a copy of the Election.

We express no opinion as to: (1) whether the “acquisition/sale” of the Target 1 stock qualifies as a "qualified stock purchase" under § 338(d)(3); (2) whether the “acquisition/sale” of Target 1 stock qualifies for § 338(h)(10) treatment; or (3) if § 338(h)(10) is applicable, the amount and character of gain or loss, if any, recognized on Target 1's deemed asset sales and deemed liquidation (or the amount of the deemed sale gain, if any, the S shareholders will take into account under §§ 1366 and 1367, or the amount, if any, of gain or loss recognized by the S shareholders as a result of the deemed liquidation under § 331). See § 1.338(h)(10)-1(e).

In addition, we express no opinion as to the tax consequences of filing the Election late under the provisions of any other section of the Code and regulations, or
PLR-127296-00
-6-

as to the tax treatment of any conditions existing at the time of, or resulting from, filing the Election late that are not specifically set forth in the above ruling. For purposes of granting relief under § 301.9100-1, we relied on certain statements and representations made by the taxpayers. However, the Director should verify all essential facts. In addition, notwithstanding that an extension is granted under § 301.9100-1 to file the Election, penalties and interest that would otherwise be applicable, if any, continue to apply.

Purchaser must provide each of the Sellers with a copy of this letter.

This letter is directed only to the taxpayer(s) who requested it. Section 6110(k)(3) provides that it may not be used or cited as precedent.

Sincerely yours,
Associate Chief Counsel (Corporate)
By: Mark S. Jennings
Chief, CC:CORP:1