PLR 1151018: IRS grants relief for a late Form 1128

Plain-English summary

The IRS granted relief to a taxpayer that filed Form 1128 late to change its tax year from an October 31 year-end to a December 31 year-end. The IRS concluded that the taxpayer acted reasonably and in good faith and that granting relief would not prejudice the government. The late Form 1128 is treated as timely filed under Treas. Reg. § 301.9100-3, subject to forwarding the application and ruling to the appropriate service center within 45 days. The ruling does not decide whether the taxpayer is otherwise eligible to make the requested accounting-period change under IRC § 442 and Rev. Proc. 2006-45.

Ruling snapshot

• Question: May the taxpayer's late Form 1128 be treated as timely filed for the requested tax-year change?
• Outcome: Approved.
• Key authorities: IRC §§ 442, 6110; Treas. Reg. §§ 1.442-1(b)(1), 301.9100-3; Rev. Proc. 2006-45

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201151018 [Third Party Communication:
Release Date: 12/23/2011 Date of Communication: Month DD, YYYY]
Index Number: 9100.09-00
Person To Contact:
------------------------ --------------, ID No. -----------------
------------------------------- Telephone Number/Fax Number:
----------------- --------------------- ---------------------
------------------------------------------- Refer Reply To:
------------------------------------------------ CC:ITA:4
PLR-131568-11
Date: September 15, 2011

Legend:
TIN = ----------------
Year = -------

Dear ---------------

This letter ruling is in reference to Taxpayer’s request that its Form 1128, Application to
Adopt, Change, or Retain a Tax Year, be considered timely filed under the authority in
§301.9100-3 of the Regulations on Procedure and Administration. Taxpayer filed a late
Form 1128 to change its accounting period, for federal income tax purposes, from a
taxable year ending October 31, to a taxable year ending December 31, effective
December 31, Year.

Revenue Procedure 2006-45, 2006-45 C.B. 851, provides procedures for certain
corporations to obtain automatic approval to change their annual accounting period
under § 442 of the Internal Revenue Code. A corporation complying with all the
applicable provisions of this revenue procedure has obtained the consent of the
Commissioner of the Internal Revenue Service to change its annual accounting period.
Section 7.02(2) of Rev. Proc. 2006-45 provides that a Form 1128 filed pursuant to the
revenue procedure will be considered timely filed for purposes of § 1.442-1(b)(1) of the
Income Tax Regulations only if it is filed on or before the time (including extensions) for
filing the return for the short period required to effectuate the change.

The information furnished indicates that Taxpayer did not file its Form 1128 by the due
date of the return for the short period required to effectuate the change. However,
Taxpayer requested an extension of time to file its Form 1128 under § 301.9100-3
shortly the after the required time.

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 this 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 establishes that the taxpayer
PLR-131568-11 2

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, we
conclude that Taxpayer has acted reasonably and in good faith, and that the granting of
relief will not prejudice the interests of the government. Accordingly, Taxpayer has
satisfied the requirements of the regulations for the granting of relief, and Taxpayer's
late filed Form 1128 requesting to change to December 31, effective December 31,
Year, is considered timely filed. 1

Because a change in accounting period under Rev. Proc. 2006-45 is under the
jurisdiction of the Director, Internal Revenue Service Center, where the taxpayer’s
returns are filed, we are returning your application so that you may forward along with a
copy of this letter it to the Director, --------- Service Center, within 45 days of the date of
this letter. Any further communication regarding this matter should be directed to the
Service Center.

This ruling 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.
However, as part of an examination process, the Service may verify the factual
information, representations, and other data submitted.

This ruling addresses only the granting of § 301.9100-3 relief. 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. Specifically, we express no opinion as to whether the taxpayer is permitted
under the Code and applicable regulations to change to the tax year requested in the
Form 1128, or whether the change may be effectuate under Rev. Proc. 2006-45.

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.

1
The taxpayer’s application for a change in accounting period will be processed under
Rev. Proc. 2006-45.
PLR-131568-11 3

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. Enclosed is a copy of the letter
ruling showing the deletions proposed to be made when it is disclosed under § 6110.

                                  Sincerely,



                                  Donna Welsh
                                  Senior Technician Reviewer
                                  (Income Tax & Accounting)
                                  Office of Chief Counsel

Enclosures