Late success-based fee election statement allowed

Plain-English summary

A company acquired all the stock of a target and incurred success-based advisory fees. Its return reflected the Rev. Proc. 2011-29 safe harbor by capitalizing 30% of those fees and treating 70% as nonfacilitative, but its tax preparer inadvertently omitted the required election statement from the electronically filed return. The IRS found that the company had reasonably relied on a qualified tax professional, consistently reported the intended position, did not use hindsight, and would not obtain a lower aggregate tax liability from late relief. The requirements of Treasury Regulation sections 301.9100-1 and 301.9100-3 were therefore satisfied. The IRS gave the company 60 days to file the statement identifying the transaction and the amounts deducted and capitalized.

Ruling snapshot

• Question: May the taxpayer file a late Rev. Proc. 2011-29 safe-harbor election statement for success-based fees?
• Outcome: approved; a 60-day extension was granted
• Key authorities: Treas. Reg. §§ 1.263(a)-5, 301.9100-1, 301.9100-3; Rev. Proc. 2011-29

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 201702027
Third Party Communication: None
Release Date: 1/13/2017
Date of Communication: Not Applicable
Index Number: 9100.00-00
Person To Contact:
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-----------------, ID No. ------------------
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Telephone Number:
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Refer Reply To:
CC:ITA:B03
PLR-116679-16
Date: October 13, 2016

TY: -------

LEGEND:

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

Target = -------------------------------------------------------------------

Date 1 = ------------------

Date 2 = -----------------------

Date 3 = ------------------------

Date 4 = --------------------------

Date 5 = ----------------------------

Date 6 = ------------------------

Taxable Year = -------

$X = ----------------

Adviser = ---------------------------------

Tax Preparer = ----------------

Tax Professional = -------------------------------------------
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Dear --------------------:

This responds to a letter ruling request dated Date 1, submitted on behalf of Taxpayer. Taxpayer requests an extension of time under §§ 301.9100-1 and 301.9100- 3 of the Procedure and Administration Regulations to make a late election concerning the treatment of success-based fees in accordance with Rev. Proc. 2011-29, 2011-1 C.B. 746, which requires that a statement be attached to Taxpayer's original federal income tax return for Taxable Year.
FACTS

On Date 2, Taxpayer entered into a stock purchase agreement pursuant to which, effective as of the closing on Date 3, it acquired 100% of the issued and outstanding stock of Target.

As part of the purchase of Target, Taxpayer incurred $X of success-based fees for services performed in the process of investigating or otherwise pursing the transaction. Taxpayer engaged Adviser to advise on the structure, negotiate the transaction, provide advice on technical considerations, perform valuation analysis, advise on financial terms and considerations, assist with coordinating due diligence, and other financial matters with respect to the purchase.

Taxpayer engaged Tax Preparer to prepare its consolidated return for Taxable Year. Taxpayer also engaged Tax Professional to perform an analysis of the success-based fees that were incurred and paid by Taxpayer in association with the transaction, as well as to prepare any documentation to establish that portion of the success-based fees allocable to activities that did not facilitate the transaction.

On Date 4, Tax Preparer received from Taxpayer a copy of Taxpayer’s signed electronic statement to include with its return requesting the safe harbor method of accounting under § 4.01 of Rev. Proc. 2011-29. The election statement, prepared by Tax Professional, was provided to Tax Preparer among other documents for inclusion with Taxpayer’s consolidated return. Tax Preparer inadvertently failed to include the election statement, as is required by § 4.01(3) of Rev. Proc. 2011-29, with Taxpayer’s consolidated return when Tax Preparer filed the return electronically. Taxpayer’s consolidated return was prepared consistent with having made a timely election § 4.01 of Rev. Proc. 2011-29. Taxpayer capitalized 30% of the success-based fees, and reported the remaining 70% as an amount that did not facilitate the purchase of Target.

Soon after Date 5, during the review of Taxpayer’s consolidated return, Tax Preparer discovered the omission of the election statement. Subsequent to discovering the oversight, Tax Preparer, immediately advised Taxpayer that the election statement had not been attached to Taxpayer’s filed consolidated return. On Date 6, Taxpayer
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requested that Tax Preparer make a request pursuant to Treas. Reg. §§ 301.9100-1(c) and 301.9100-3.

LAW

Section 263(a) of the Internal Revenue Code provides generally that no deduction is allowed for any amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate or any amount expended in restoring property or in making good the exhaustion thereof for which an allowance is or has been made. Section 1.263(a)-4(b)(i) provides that no deduction is allowed for an amount paid to acquire or create an intangible, which under §§ 1.263(a)- 4(c)(1)(i) and 1.263(a)-4(d)(2)(i)(A) includes an ownership interest in a corporation or other entity. See also § 1.263(a)-4(a).

In the case of an acquisition or reorganization of a business entity, costs that are incurred in the process of acquisition and that produce significant long-term benefits must be capitalized. See INDOPCO, Inc. v. Commissioner, 503 U.S. 79 (1992); Woodward v. Commissioner, 397 U.S. 572 (1970).

Under § 1.263(a)-5, a taxpayer must capitalize an amount paid to facilitate the business acquisition or reorganization transactions described in § 1.263(a)-5(a). In general, an amount is paid to facilitate a transaction described in § 1.263(a)-5(a) if the amount is paid in the process of investigating or otherwise pursuing the transaction. Whether an amount is paid in the process of investigating or otherwise pursuing the transaction is determined based on all of the facts and circumstances. Section 1.263(a)-5(b)(1).

Section 1.263(a)-5(f) provides that an amount that is contingent on the successful closing of a transaction described in § 1.263(a)-5(a) (i.e., a success-based fee) is an amount paid to facilitate the transaction except to the extent the taxpayer maintains sufficient documentation to establish that a portion of the fee is allocable to activities that do not facilitate the transaction. This documentation must be completed on or before the due date of the taxpayer's timely filed original federal income tax return (including extensions) for the taxable year during which the transaction closes.

Section 4.01 of Rev. Proc. 2011-29 provides a safe harbor election for taxpayers that pay or incur success-based fees for services performed in the process of investigating or otherwise pursuing a covered transaction described in § 1.263(a)-5(e)(3). In lieu of maintaining the documentation required by § 1.263(a)-5(f), a taxpayer may elect to allocate a success-based fee between activities that facilitate the transaction and activities that do not facilitate the transaction by treating 70 percent of the amount of the success-based fee as an amount that does not facilitate the transaction and by capitalizing the remaining 30 percent as an amount that does facilitate the transaction. In addition, the taxpayer must attach a statement to its original federal income tax return for the taxable year the success-based fee is paid or incurred, stating that the taxpayer
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is electing the safe harbor, identifying the transaction, and stating the success-based fee amounts that are deducted and capitalized.

Section 301.9100-1(c) provides that the Commissioner has discretion to grant a reasonable extension of time under the rules set forth in §§ 301.9100-2 and 301.9100-3 to make certain regulatory elections. Section 301.9100-1(b) defines a “regulatory election” as an election whose due date is prescribed by a regulation published in the Federal Register, or a revenue ruling, revenue procedure, notice or announcement published in the Internal Revenue Bulletin.

Sections 301.9100-1 through 301.9100-3 provide the standards the Commissioner will use to determine whether to grant an extension of time to make an election. Section 301.9100-2 provides automatic extensions of time for making certain elections. Section 301.9100-3 provides extensions of time for making elections that do not meet the requirements of § 301.9100-2.

Section 301.9100-3(a) provides that requests for extensions of time for regulatory elections (other than automatic changes covered under section 301.9100-2) will be granted when the taxpayer provides evidence (including affidavits described in the regulations) to establish to the satisfaction of the Commissioner that the taxpayer acted reasonably and in good faith, and that granting relief will not prejudice the interests of the Government.

Section 301.9100-3(b)(1) provides that a taxpayer will be deemed to have acted reasonably and in good faith if the taxpayer —

(i) requests relief before the failure to make the regulatory election is discovered by the Service;

(ii) inadvertently failed to make the election because of intervening events beyond the taxpayer's control;

(iii) failed to make the election because, after exercising due diligence, the taxpayer was unaware of the necessity for the election;

(iv) reasonably relied on the written advice of the Service; or

(v) reasonably relied on a qualified tax professional, and the tax professional failed to make, or advise the taxpayer to make the election.

Section 301.9100-3(b)(3) provides that a taxpayer will not be considered to have acted reasonably and in good faith if the taxpayer —

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

(ii) was informed in all material respects of the required election and related tax consequences, but chose not to file the election; or

(iii) uses hindsight in requesting relief. If specific facts have changed since the original deadline that make the election advantageous to a taxpayer, the Service will not ordinarily grant relief.

Section 301.9100-3(c)(1) provides that the Commissioner will grant a reasonable extension of time only when the interests of the Government will not be prejudiced by the granting of relief. 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. The interests of the Government are ordinarily prejudiced if the taxable year in which the regulatory election should have been made or any taxable years 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.

ANALYSIS

Taxpayer's election is a regulatory election, as defined under § 301.9100-1(b), because the due date of the election is prescribed in Rev. Proc. 2011-29. The Commissioner has the authority under §§ 301.9100-1 and 301.9100-3 to grant an extension of time to file a late regulatory election.

The information and representations made by Taxpayer establish that Taxpayer acted reasonably and in good faith. Taxpayer reasonably relied on Tax Return Preparer, a qualified tax professional, to prepare its federal income tax return for Taxable Year. Taxpayer is not seeking to alter a return position for which an accuracy related penalty has been or could be imposed under § 6662 of the Code at the time relief is requested. Taxpayer did not affirmatively choose not to make the election after having been informed in all material respects of the required election and related tax consequences. Rather, Taxpayer intended to take advantage of the safe harbor provisions in Rev. Proc. 2011-29 and filed its return for Taxable Year reflecting those provisions but failed to include the required election statement. Taxpayer is not using hindsight in requesting relief.

Further, based on the facts of the case provided, granting an extension will not prejudice the interests of the Government. Taxpayer will not have a lower tax liability in the aggregate for all taxable years affected by the election if given permission to make the election at this time than Taxpayer would have had if the election had been timely
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made. In addition, the taxable year in which the regulatory election should have been made and any taxable years that would have been affected by the election had it been timely made will not be closed by the period of limitations on assessment under § 6501(a) before Taxpayer's receipt of the ruling granting an extension of time to make a late election.

RULING

Based upon our analysis of the facts as represented, we conclude that Taxpayer acted reasonably and in good faith, and granting relief will not prejudice the interests of the government. Accordingly, the requirements of §§ 301.9100-1 and 301.9100-3 have been met.

Taxpayer is granted an extension of 60 days from the date of this ruling to file the statement required by section 4.01(3) of Rev. Proc. 2011-29, stating that it is electing the safe harbor for success-based fees, identifying the transaction, and stating the success-based fee amounts that are deducted and capitalized.

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 appropriate parties. 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.

Except as expressly provided 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, including whether Taxpayer properly included the correct costs as its success-based fees subject to the election, or whether Taxpayer's transaction was within the scope of Rev. Proc. 2011-29.

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 ruling should be attached to Taxpayer's federal income tax returns for the tax years affected. Alternatively, taxpayers filing returns electronically may satisfy this requirement by attaching a statement to their return that provides the date and control number of this ruling.
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In accordance with the power of attorney on file with this office, a copy of this letter is being sent to your authorized representatives. We are also sending a copy of this letter to the appropriate operating division director. Enclosed is a copy of the letter ruling showing the deletions proposed to be made in the letter when it is disclosed under § 6110 of the Code.

Sincerely,

Christopher F. Kane
Branch Chief, Branch 3
(Income Tax & Accounting)