PLR 201016008: Extension granted for late homeowners association elections

Plain-English summary

The IRS granted a condominium management association an extension to make the elections required to be treated as a homeowners association under IRC § 528 for several taxable years. The association had not filed the required income tax returns because its officers were unaware of the filing requirements. The IRS found that the requirements for relief under Treas. Reg. § 301.9100-3 were satisfied and allowed the association 90 days from the ruling date to file Forms 1120-H. The association still bears the burden of showing that it meets the substantive requirements of § 528(c)(1).

Ruling snapshot

• Question: May a condominium management association obtain an extension to make late § 528 homeowners association elections?
• Outcome: Approved
• Key authorities: IRC § 528; Treas. Reg. §§ 1.528-8 and 301.9100-3

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 201016008
Third Party Communication: None
Release Date: 4/23/2010
Date of Communication: Not Applicable
Person To Contact:
Index Number: 528.00-00, 9100.00-00
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Telephone Number:
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Refer Reply To:
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PLR-127607-09
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Date:
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November 30, 2009

Legend

Taxpayer = ----------------------------------------------------------------------
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a = -------
b = -------
c = -------

Dear ------------------:

This responds to your letter requesting an extension of time under § 301.9100-1 of the Procedure and Administration Regulations to make an election to be treated as a homeowners association under § 528 of the Internal Revenue Code for taxable years a through b.

The information submitted and the representations made are as follows: Taxpayer is a condominium management association that was established in year a. Because the officers of Taxpayer were not aware of the income tax filing requirements for a homeowners association, no income tax returns were filed for taxable years a through b. Upon becoming aware of the income tax filing requirements for homeowners associations, Taxpayer filed Form 1120-H for taxable year c.

Section 528 and § 1.528-1 of the Income Tax Regulations generally provide that homeowners associations meeting the requirements of § 528(c) may be treated as tax- exempt organizations, but only to the extent of their exempt function income.
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Section 528(c)(1) provides, in part, that the term “homeowners association” means an organization that elects (at such time and in such manner as the Secretary by regulations prescribes) to have § 528 apply for the taxable year.

Section 1.528-8(a) provides that a separate election to be treated as a homeowners association under § 528 must be made for each taxable year. This election must be made by filing a properly completed Form 1120-H (or such other form as the Secretary may prescribe).

Section 1.528-8(b) provides that for taxable years ending after December 30, 1976, the election must be made not later than the time, including extensions, for filing an income tax return for the year in which the election is to apply.

Section 301.9100-1(c) provides that the Commissioner, in an exercise of discretion, may grant a reasonable extension of time under the rules set forth in §§ 301.9100-2 and 301.9100-3 to make a regulatory election, or a statutory election (but not 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.

Sections 301-9100-2 and 301.9100-3 provide the standards the Commissioner will use to determine whether to grant an extension of time to make the election under
§ 301.9100-1(a). In addition, § 301.9100-2 provides automatic extensions of time for making certain elections, and § 301.9100-3 provides extensions of time for making elections that do not meet the requirements of § 301.9100-2.

Requests for relief under § 301.9100-3 will be granted when the taxpayer provides the evidence to establish that the taxpayer acted reasonably and in good faith, and that granting relief will not prejudice the interests of the government.

Based on the facts and representations submitted with your request, we have determined that the requirements of § 301.9100-3 have been satisfied with respect to taxable years a through b. Therefore, an extension of time is granted, until 90 days from the date of this ruling, for making the elections required on Forms 1120-H for Taxpayer to be treated as a homeowners association under § 528 with respect to taxable years a through b.

We note, however, that the burden is upon Taxpayer to produce, upon request, any records necessary to establish to the satisfaction of the Service that Taxpayer meets all of the requirements of § 528(c)(1).

Except as expressly ruled 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 or under any other provisions of the Code. Moreover, we express no opinion concerning the assessment of interest, additions to tax, additional amounts, or penalties
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for failure to file an income tax return with respect to any year. Specifically, we express or imply no opinion on whether Taxpayer qualifies as a homeowners association under
§ 528(c).

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.

A copy of this letter should be attached to Taxpayer’s election for each year covered by this letter.

The rulings contained in this letter are based upon information and representations submitted by 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 rulings, it is subject to verification on examination.

Sincerely,

Curt G. Wilson

Curt G. Wilson
Associate Chief Counsel
(Passthroughs and Special Industries)

Enclosures (2)

Copy of this letter
Copy for section 6110 purposes

cc: