PLR 200137007: Late application to retain a September tax year is treated as timely

Plain-English summary

A taxpayer filed Form 1128 late to request permission to retain a September 30 tax year. The form was filed within 90 days of its due date. The IRS found that the taxpayer acted reasonably and in good faith and that relief would not prejudice the government. It treated the form as timely filed under the § 301.9100-3 rules. The letter did not decide whether the taxpayer was substantively allowed to retain that tax year.

Ruling snapshot

• Question: May the late Form 1128 seeking to retain a September 30 tax year be treated as timely?
• Outcome: Approved for filing timeliness only.
• Key authorities: Treas. Reg. § 301.9100-3.

Full text (IRS public release)

INTERNAL REVENUE SERVICE

Number: 200137007
Release Date: 9/14/2001
Index Nos.: 9100.09-00

CC:IT&A:B9 PLR-113393-01
June 1, 2001

Dear
:

This is in reference to a Form 1128, Application to Adopt, Change, or Retain a Tax Year, submitted on behalf of the above- named taxpayer, requesting permission to retain a tax year end of September 30, effective for the tax year beginning October 1, 2000 and ending September 30, 2001 for federal income tax purposes. The taxpayer has requested that the Form 1128 be considered timely filed under the authority contained in §301.9100-3 of the Procedure and Administration Regulations.

The taxpayer's Form 1128 was filed late. However, the form was filed within 90 days of the due date.

Section 301.9100-3(a) provides that requests for extensions of time for regulatory elections that do not meet the requirements of § 301.9100-2 (automatic extensions), such as the instant case, must be made under the rules of § 301.9100-3. Requests for relief subject to § 301.9100-3 will be granted when the taxpayer provides evidence to establish that the taxpayer acted reasonably and in good faith, and that the granting of relief will not prejudice the interests of the government.

Based on the facts and information submitted and the representations made, it is held that the taxpayer has acted reasonably and in good faith, and that the granting of relief will not prejudice the interests of the government. Accordingly, the requirements of the regulations for the granting of relief have been satisfied in this case, and the taxpayer's late filed Form 1128 requesting permission to retain a tax year end of September 30, effective for the tax year beginning October 1, 2000 and ending September 30, 2001, is considered timely filed.

The ruling contained in this letter is based upon facts and representations submitted by the 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. Verification of the factual information, representations, and other data may be required as part of an examination process.
This ruling addresses the granting of § 301.9100-3 relief

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PLR-113393-01
only. No opinion is expressed regarding the tax treatment of the instant transaction under the provisions of any other sections of the Code or regulations that may be applicable thereto, or regarding the tax treatment of any conditions existing at the time of, or effects resulting from, the instant transaction. Specifically, no opinion is expressed as to whether the taxpayer is permitted under the Code and applicable regulations to retain the tax year requested in the subject Form 1128.

In accordance with the provisions of a power of attorney currently on file, we are sending a copy of this letter ruling to the taxpayer’s authorized representative.
This ruling is directed only to the taxpayer that requested it. Section 6110(k)(3) of the Internal Revenue Code provides that it may not be used or cited as precedent.

Sincerely yours,
Associate Chief Counsel
(Income Tax and Accounting)
Heather C. Maloy

Enclosures:
Copy of this letter
Copy for § 6110 purposes