Taxpayer receives more time for real property debt exclusion election

Plain-English summary

A partner received cancellation-of-debt income through an LLC that owned a commercial building. The partner represented that the income was eligible for the qualified real property business indebtedness exclusion, but the return preparer failed to advise about or make the required election on Form 982. The IRS found reasonable reliance on the tax professional and no prejudice to the government. It granted 45 days to file an amended return making the IRC § 108(c)(3)(C) election and required the related basis reduction, while declining to rule that the income was cancellation-of-debt income or actually qualified for exclusion.

Ruling snapshot

• Question: May the taxpayer file a late Form 982 election to exclude qualified real property business debt income and reduce depreciable real property basis?
• Outcome: Approved, with 45 days to file an amended return and make the corresponding basis reduction
• Key authorities: IRC §§ 61(a)(12) and 108(a), (c), and (d)(6); Treas. Reg. §§ 1.108-5(b) and 301.9100-3

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201447011 Third Party Communication: None
Release Date: 11/21/2014 Date of Communication: Not Applicable
Index Number: 108.00-00, 108.01-00,
108.02-00, 108.02-01,
9100.00-00
Person To Contact:
---------------------, ID No. -----------

Telephone Number:

----------------------

Refer Reply To:
CC:ITA:B04
PLR-107389-14
Date:
August 18, 2014

LEGEND

Taxpayer = -------------------------------------------------------
LLC = -------------------------------------------------------------
Year 1 = -------
Year 2 = -------
x = ----
$a = --------------
$b = ---------------
Firm = --------------------------------
Individual = ------------------------

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

This letter responds to your letter requesting an extension of time under § 301.9100-3 of
the Procedure and Administration Regulations to make a regulatory election.
Specifically, you have requested an extension of time to make an election under
§ 108(c)(3)(C) of the Internal Revenue Code and § 1.108-5(b) of the Income Tax
Regulations, to exclude income resulting from the discharge of qualified real property
business indebtedness and to reduce the basis of depreciable real property, effective
for Taxpayer’s Year 1 tax return.

FACTS

Taxpayer reports income on a calendar year, uses the cash receipts and disbursements
method of accounting and owns a x percent interest in LLC. LLC is a limited liability
company that is treated as a partnership for federal income tax purposes, reports
income on a calendar year, uses the cash receipts and disbursements method of
accounting and is the owner of a commercial building.

PLR-107389-14 2

Taxpayer entered into a Final Forbearance Agreement that resulted in cancellation of
indebtedness income (COD). In Year 1, Taxpayer received a Schedule K-1 from LLC
that showed COD in the amount of $a. The amount attributable to Taxpayer based on
his ownership interest in LLC is $b.

Taxpayer represents that as a partner of LLC, he was eligible to exclude COD income
pursuant to § 108(c), which relates to qualified real property business indebtedness.
This exclusion required Taxpayer to make an election pursuant to § 108(c)(3)(C) and
§ 1.108-5(b) on a timely filed Year 1 Form 1040. Taxpayer’s Year 1 Form 1040 was
prepared by Firm a qualified tax professional with many years of experience. However,
due to an oversight, Firm did not discuss the election with Taxpayer nor did Firm make
the election on Taxpayer’s behalf to reduce the basis of depreciable real property and to
exclude income resulting from the discharge of qualified real property business
indebtedness. Taxpayer’s Year 1 Form 1040 was timely filed.

In Year 2, Individual discovered that Taxpayer had been eligible to make the election
relating to COD income in Year 1. After discovering Firm’s oversight in not including the
Form 982 making the § 108(c)(3)(C) election on Taxpayer’s Year 1 Form 1040,
Taxpayer filed this request for an extension of time to make the election. Taxpayer and
Firm have submitted affidavits consistent with the above facts.

Taxpayer represents that: 1) granting relief under § 301.9100-3 will not result in a lower
tax liability in the aggregate for all years to which the election applies than Taxpayer
(and all interested parties) would have had if the election had been timely made (taking
into account the time value of money); 2) Taxpayer’s adjusted basis in the depreciable
property is greater than the amount of COD income; and 3) Taxpayer will not exclude
an amount under § 108(a)(1)(D) that exceeds the excess of the principal amount of
indebtedness over the fair market value of the real property.

LAW AND ANALYSIS

Section 61(a) of the Code provides, in part, that except as otherwise provided in this
subtitle, gross income means all income from whatever source derived. The statute
then specifically lists income from discharge of indebtedness as one of the items within
the scope of the term income. See § 61(a)(12).

Section 108(a)(1)(D) provides that gross income does not include any amount that (but
for § 108(a)) would be includible in gross income by reason of the discharge of
indebtedness if, in the case of a taxpayer other than a C corporation, the indebtedness
discharged is qualified real property business indebtedness.

PLR-107389-14 3

Section 108(c)(1) provides that the amount excluded from gross income under
§ 108(a)(1)(D) shall be applied to reduce the basis of the depreciable real property of
the taxpayer.

Section 108(c)(2)(A) provides, in general, that the amount excluded under §108(a)(1)(D)
with respect to any qualified real property business indebtedness shall not exceed the
excess of the outstanding principal amount of such indebtedness (immediately before
the discharge) over the fair market value of the real property described in § 108(c)(3)(A)
(as of such time).

Section 108(c)(3)(C) requires a taxpayer to make an election to exclude COD income
under § 108(a)(1)(D).

Section 108(d)(6) provides that in the case of a partnership, § 108(a) and § 108(c) are
applied at the partner level.
.
Section 1.108-5(b) provides that the election under § 108(c)(3)(C) is made on the timely
filed (including extensions) federal income tax return for the taxable year in which the
taxpayer has discharge of indebtedness income that is excludible from gross income
under § 108(a). The election is made on a completed Form 982, Reduction of Tax
Attributes Due to Discharge of Indebtedness (and Section 1082 Basis Adjustment).

Sections 301.9100-1 through § 301.9100-3 provide the standards that the Service will
use to determine whether to grant an extension of time to make a regulatory election.
Section 301.9100-3(a) provides that requests for extension of time for regulatory
elections (other than automatic extensions covered in § 301.9100-2) will be granted
when the taxpayer provides evidence (including affidavits) to establish that the taxpayer
acted reasonably and in good faith and the grant of relief will not prejudice the interests
of the Government.

Under § 301.9100-3(b) a taxpayer is deemed to have acted reasonably and in good
faith if the taxpayer reasonably relied on a qualified tax professional and the tax
professional failed to make, or advise the taxpayer to make, the election. However, a
taxpayer is not considered to have reasonably relied on a qualified tax professional if
the taxpayer knew or should have known that the professional was not competent to
render advice on the regulatory election or was not aware of all relevant facts. In
addition, § 301.9100-3(b)(3) provides that a taxpayer is deemed not to have acted
reasonably and in good faith if the taxpayer—

(i) Seeks to alter a return position for which an accuracy-related penalty has been or
could be imposed under § 6662 at the time the taxpayer requests relief and the new
position requires or permits a regulatory election for which relief is requested;

PLR-107389-14 4

(ii) Was informed in all respects of the required election and related consequences, but
chose not to make the election; or

(iii) Uses hindsight in requesting relief.

Section 301.9100-3(c)(1) provides that the Commissioner will grant a reasonable
extension of time to make the regulatory election only when the interests of the
Government will not be prejudiced by the granting of relief.

Section 301.9100-3(c)(1)(i) provides that the interests of the Government are prejudiced
if granting relief would result in a taxpayer having a lower tax liability in the aggregate
for all taxable years affected by the election than the taxpayer would have had if the
election had been timely made (taking into account the time value of money). Similarly,
if the tax consequences of more than one taxpayer are affected by the election, the
Government's interests are prejudiced if extending the time for making the election may
result in the affected taxpayers, in the aggregate, having a lower tax liability than if the
election had been timely made.

Section 301.9100-3(c)(1)(ii) provides that the interests of the government are ordinarily
prejudiced if the taxable year in which the regulatory election should have been made or
any taxable year that would have been affected by the election had it been timely made
are closed by the period of limitations on assessment under § 6501(a) before the
taxpayer's receipt of a ruling granting relief under this section.

Under the facts submitted by Taxpayer, we conclude that Taxpayer has acted
reasonably and in good faith under § 301.9100-3(b). In addition, we conclude that
granting relief will not prejudice the interests of the government under § 301.9100-3(c).

CONCLUSION

Based solely on the information submitted and the facts as represented in the ruling
request, we grant Taxpayer an extension of 45 days from the date of this letter to file an
amended return to make the election under § 108(c)(3)(C) and § 1.108-5(b). The
election is to be made on Form 982. As required by § 108(c)(1) in making this election,
Taxpayer will reduce basis in its depreciable real property on its Year 2 tax return to the
extent that would have been required if the election had been timely made on the
original return.

Except as expressly provided in the preceding paragraph, we do not express or imply
an opinion concerning the tax consequences of any aspect of any transaction or item
discussed or referenced in this letter. Specifically, this letter does not rule on whether
the amount of income at issue is properly treated as cancellation of indebtedness
income under § 61(a)(12). In addition, this letter also does not rule on whether the
income in fact qualifies for exclusion from income under § 108.

PLR-107389-14 5

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.

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

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.

The rulings contained in this letter are 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 rulings, it is subject to verification on examination.

Sincerely,

J. Peter Baumgarten
Assistant to the Branch Chief, Branch 4
Office of Associate Chief Counsel
(Income Tax & Accounting)