Late Form 1128 is treated as timely filed

Plain-English summary

A taxpayer sought to change its federal tax year but did not file Form 1128 by the deadline for the short-period return required to make the change. It requested section 301.9100-3 relief shortly after the filing deadline. The IRS concluded that the taxpayer acted reasonably and in good faith and that relief would not prejudice the government. It therefore treated the late Form 1128 as timely filed. The ruling grants deadline relief only and does not decide whether the taxpayer is otherwise permitted to adopt the requested tax year.

Ruling snapshot

• Question: May the taxpayer's late Form 1128 be treated as timely filed?
• Outcome: Yes, for purposes of section 301.9100-3 relief.
• Key authorities: IRC § 442; Treas. Reg. § 301.9100-3

Full text (IRS public release)

Internal Revenue Service                        Department of the Treasury
                                                Washington, DC 20224

Number: 201606007                               Third Party Communication: None
Release Date: 2/5/2016                          Date of Communication: Not Applicable
Index Number: 9100.09-00
                                                Person To Contact:
------------------------------                  -------------------, ID No. ----------------
-----------------------------------------       Telephone Number:
------------------------------                  --------------------
 -------------------------------                Refer Reply To:
                                                CC:ITA:B04
                                                PLR-119803-15
                                                Date:
                                                November 02, 2015




Legend:

Taxpayer = ----------------------------------
Date 1 = ------------------
Date 2 = ------------------
Date 3 = --------------------------

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

This letter ruling is in reference to Taxpayer’s Form 1128, Application to Adopt, Change,
or Retain a Tax Year, requesting permission to change its accounting period, for federal
income tax purposes, from a taxable year ending Date 1, to one ending Date 2, effective
Date 3. Taxpayer has requested that the Form 1128 be considered timely filed under
the authority in § 301.9100-3 of the Regulations on Procedure and Administration.

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 effect the change (including
extension). However, Taxpayer requested an extension of time to file its Form 1128
under § 301.9100-3 shortly after the required time for filing the return.

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 the instant 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 provides evidence to
establish that the taxpayer acted reasonably and in good faith, and that the granting of
relief will not prejudice the interests of the government.
PLR-119803-15                                 2

Based on the facts and information submitted and the representations made, we
conclude that you have 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 from a tax year ending Date 1, to a tax year
ending Date 2, effective Date 3, is considered timely filed.

This ruling is based upon facts, representations, and affidavits that Taxpayer submitted,
and accompanied by penalty of perjury statements executed by the 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 the granting of § 301.9100-3 relief only. 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 you are permitted under
the Code and applicable regulations to change to the tax year requested in the Form
1128.

This ruling is directed only to the taxpayer that requested 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.

In accordance with the Power of Attorney on file with this office, we are sending a copy
of this letter to your authorized representative.

                                          Sincerely,



                                          Michael J. Montemurro
                                          Chief, Branch 4
                                          Office of Associate Chief Counsel
                                          (Income Tax & Accounting)