Taxpayer receives extension for foreign-earned-income election

Plain-English summary

A U.S. taxpayer lived and worked in two foreign countries but did not timely elect the foreign earned income exclusion under IRC § 911 for one tax year. The taxpayer explained under penalty of perjury that limited experience and the complexity of the return left the taxpayer unaware that an election was required. The IRS concluded that the taxpayer met the regulatory standards for reasonable action, good faith, and no prejudice to the government. It granted 60 days from the ruling date to make the § 911 election for the requested year.

Ruling snapshot

• Question: Could the taxpayer receive extra time to elect the § 911 foreign earned income exclusion?
• Outcome: Approved. The taxpayer received 60 days from the letter date to make the election.
• Key authorities: IRC § 911; Treas. Reg. §§ 1.911-7(a), 301.9100-1, 301.9100-3

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201433009 Third Party Communication: None
Release Date: 8/15/2014 Date of Communication: Not Applicable
Index Number: 9100.17-00
Person To Contact:
----------------------------- ------------------------, ID No. ------------------
-------------------- ----------------------------------------------------
---------------------------------------- Telephone Number:

Refer Reply To:
CC:INTL:B02
PLR-143936-13
Date:
April 21, 2014

TY:-------

Legend

Taxpayer = ------------------------
= ------------------

Year 1 = -------

Year 4 = -------

Country A = ----------------

Country B = ------------------

Company = -------------------------------------------

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

This is in response to a letter received in this office on August 26, 2013, and
subsequent correspondence, submitted on your behalf by your authorized
representative, requesting an extension of time under Treas. Reg. §301.9100-3 to elect
the provisions of section 911 of the Internal Revenue Code (“Code”) for Taxpayer’s
Year 4 taxable year.

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 the Taxpayer. 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. The information submitted in the request is substantially as set forth
below.
PLR-143936-13 2

FACTS

Taxpayer lived in Country A and Country B from Year 1 to Year 4. Taxpayer was
employed by Company in Country A and Country B from Year 1 through Year 4.

Taxpayer did not timely file an election under the provisions of section 911 for his Year
4 taxable year. Taxpayer has represented he was unaware of the requirements for
making a valid section 911 election. Taxpayer has submitted an affidavit, signed under
penalties of perjury, describing how, given the taxpayer’s lack of experience and the
complexity of his Year 4 return, Taxpayer was unaware of the necessity for the election,
which led to Taxpayer’s failure to make the election in Year 4.

RULING REQUESTED

Taxpayer requests the consent of the Commissioner to grant an extension of time under
Treas. Reg. §301.9100-3 to elect the provisions of section 911 for Taxpayer’s Year 4
taxable year.

LAW

Section 911(a) of the Code allows qualified citizens and residents of the United States
living abroad to elect to exclude from gross income the foreign earned income and
housing cost amounts of such individuals. Treas. Reg. §1.911-7(a) sets forth the
procedural rules for making a valid section 911 election. The election must be made on
Form 2555 or on a comparable form, and must be filed with the income tax return or
with an amended return. With respect to the timing of the election, Treas. Reg. §1.911-
7(a)(2)(i) provides that a valid section 911 election must be made:

(A) With an income tax return that is timely filed (including any extensions of time to
file);
(B) With a later return filed within the period prescribed in section 6511(a) amending
the foregoing timely filed income tax return;
(C) With an original income tax return filed within one year after the due date of the
return (determined without regard to any extension of time to file); or
(D) With an income tax return filed after the period described in paragraphs
(a)(2)(i)(A), (B), or (C) of this section provided –
(1) The taxpayer owes no federal income tax after taking into account the exclusion
and files Form 1040 with Form 2555 or a comparable form attached either before
or after the Internal Revenue Service (“IRS”) discovers that the taxpayer failed to
elect the exclusion; or
(2) The taxpayer owes federal income tax after taking into account the exclusion and
files Form 1040 with Form 2555 or a comparable form attached before the IRS
discovers that the taxpayer failed to elect the exclusion.
PLR-143936-13 3

Treas. Reg. §301.9100-1(c) provides that the Commissioner has the discretion to grant
a taxpayer a reasonable extension of time, under the rules set forth in Treas. Reg.
§301.9100-3, to make a regulatory election under all subtitles of the Code, except
subtitles E, G, H, and I.

Treas. Reg. §301.9100-1(b) provides that an election includes an application for relief in
respect of tax, and defines a regulatory election as an election whose due date is
prescribed by a regulation, revenue ruling, revenue procedure, notice or announcement.

Treas. Reg. §301.9100-3(a) provides that requests for relief will be granted when the
taxpayer provides the evidence (including affidavits described in Treas. Reg.
§301.9100-3(e)) to establish to the satisfaction of the Commissioner that the taxpayer
acted reasonably and in good faith, and the grant of the relief will not prejudice the
interests of the government.

Treas. Reg. §301.9100-3(b)(1) provides that, except as provided in paragraph (b)(3)(i)
through (iii), a taxpayer is deemed to have acted reasonably and in good faith if the
taxpayer:

i. Requests relief under this section before the failure to make the regulatory
election is discovered by the IRS;
ii. Failed to make the election because of intervening events beyond the
taxpayer’s control;
iii. Failed to make the election because, after exercising reasonable diligence
(taking into account the taxpayer’s experience and the complexity of the
return or issue), the taxpayer was unaware of the necessity for the election;
iv. Reasonably relied on the written advice of the IRS; or
v. Reasonably relied on a qualified on a qualified tax professional, including a
tax professional employed by the taxpayer, and the tax professional failed to
make, or advise the taxpayer to make, the election.

In this case, Treas. Reg. §1.911-7(a) fixes the time to make the election under section

911. Therefore, the Commissioner has discretionary authority under Treas. Reg.
     §301.9100-1(c) to grant a taxpayer an extension of time provided that taxpayer satisfies
     the standards set forth under Treas. Reg. §301.9100-3(a).

CONCLUSION

Based on the facts and circumstances of this case, we conclude that Taxpayer satisfies
Treas. Reg. §301.9100-3(a). Accordingly, Taxpayer is granted an extension of time
until 60 days from the date of this ruling letter to elect the foreign earned income
exclusion for Taxpayer’s Year 4 taxable year.
PLR-143936-13 4

Taxpayer should attach a copy of this letter ruling to Taxpayer’s federal income tax
return for the relevant years.

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

In accordance with the Power of Attorney on file with this office, a copy of this letter is
being faxed to your authorized representative.

Sincerely,

Jeffery G. Mitchell
Branch Chief, Branch 2
Office of Associate Chief Counsel
(International)