PLR 200248004: Bond authority gets more time to carry forward unused volume cap

Plain-English summary

A state department allocated private activity bond volume cap to an authority for qualified residential rental projects and approved a carryforward. The authority inadvertently missed the deadline to file Form 8328, the carryforward election, and discovered the omission before the IRS did. The IRS found that the authority acted reasonably and in good faith and that an extension would not prejudice the government. It granted 45 days from the letter's date to file the form for the unused cap. The ruling applies to the amount and projects specified in the letter.

Ruling snapshot

• Question: May the authority file a late election to carry forward unused private activity bond volume cap?
• Outcome: Approved: 45 days to file Form 8328 for the specified cap and projects.
• Key authorities: IRC § 146(f); Treas. Reg. §§ 301.9100-1, 301.9100-3; Notice 89-12.

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury

Number: 200248004
Washington, DC 20224
Release Date: 11/29/2002
Index Number: 146.07-00; 9100.00-00
Person to Contact:

Telephone Number:

Refer Reply To:
CC:TEGE:EOEG:TEB/PLR-137583-02
Date:
August 12, 2002

LEGEND:

Authority =

Department =

State
=

Year 1
=

Year 2
=

a
=

Dear
:

This is in response to your request for an extension of time under § 301.9100-1 of the Procedure and Administrative Regulations to file Form 8328 (Carryforward Election of Unused Private Activity Bond Volume Cap) to make a carryforward election under § 146(f) of the Internal Revenue Code with respect to $a of Authority’s unused Year 1 volume cap.

Facts and Representations

You make the following factual representations. Authority is a political subdivision of State authorized to finance, among other things, certain types of exempt facilities under § 142(a). Department administers the system established by State pursuant to § 146(e) to allocate State’s volume cap. In Year 1, Department approved an allocation and carryforward of $a in Year 1 volume cap to Authority for the purpose of financing qualified residential rental projects (the “Projects”). However, Authority inadvertently failed to file the Form 8328 for $a in Year 1 volume cap before the due

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date in Year 2. Authority did not realize its error until June of Year 2. Before this request was filed, the IRS had not discovered Authority’s failure to timely file the Form 8328.

Law and Analysis

Section 146(f)(1) provides that if an issuing authority's volume cap for any calendar year after 1985 exceeds the aggregate amount of tax-exempt private activity bonds issued during the calendar year (by the authority), the authority may elect to treat all (or any portion) of the excess as a carryforward for one or more carryforward purposes.

The election is made by filing Form 8328 with the Internal Revenue Service Center, Ogden, UT 84201. Under Notice 89-12, 1989-1 C.B. 633, Form 8328 must be filed by the earlier of (1) February 15 of the calendar year following the year in which the excess amount arises, or (2) the date of issue of bonds issued pursuant to the carryforward election.

The election must identify the purpose for which the carryforward is elected, and specify the amount to be carried forward for that purpose. I.R.C. § 146(f)(2). Carryforward elections (and any identifications or specifications stated therein) are irrevocable. I.R.C. § 146(f)(4).

Section 301.9100-1of the Procedure and Administrative Regulations provides, in part, that the Commissioner has discretion to grant a reasonable extension of time to make a regulatory election (defined in § 301.9100-1(b) as an election whose due date is prescribed by regulations, or a revenue ruling, revenue procedure, notice, or announcement published in the Internal Revenue Bulletin), or a statutory election (but no more than 6 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 301.9100-3(a) provides that requests for extensions of time for regulatory elections that do not meet the requirements for automatic extensions in § 301.9100-2, must be made under the rules of § 301.9100-3. Requests for relief will be granted if the taxpayer provides evidence establishing to the satisfaction of the Commissioner that the taxpayer acted reasonably and in good faith, and that the grant of relief will not prejudice the interests of the government.

Section 301.9100-3(b)(1) provides, in part, that the taxpayer is deemed to have acted reasonably and in good faith if the taxpayer requested relief under that section before the failure to make the regulatory election is discovered by the IRS.

Section 301.9100-3(c)(1)(i) provides, in part, that the interests of the Government are prejudiced if granting relief would result in a taxpayer having a lower tax liability than

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the taxpayer would have had if the election had been made timely (taking into account the time value of money).

Conclusion

Under the facts and circumstances of this case, we conclude that Authority acted reasonably and in good faith, and that granting an extension of time under § 301.9100- 1 to file Form 8328 to carryforward $a of unused volume cap from Year 1 will not prejudice the interests of the government. Authority is granted an extension of time to 45 days from the date of this letter ruling to file the Form 8328 to carry forward unused Year 1 volume cap in the amount of $a for the Projects.

The ruling contained in this letter is based upon information and representations submitted by the taxpayer and accompanied by a penalty of perjury statement executed by an appropriate party. While this office has not verified any of the material submitted in support of the request for a ruling, it is subject to verification on examination.

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.

This ruling is directed only to the taxpayer(s) requesting it. Section 6110(k)(3) of the Code provides that it may not be used or cited as precedent.

Sincerely yours,

Assistant Chief Counsel
(Exempt Organizations/Employment Tax/
Government Entities)

By:
Rebecca L. Harrigal
Chief, Tax Exempt Bond Branch