Late success-fee safe-harbor election was allowed

Plain-English summary

A corporation incurred success-based advisory fees in a stock-sale transaction. Its return preparer incorrectly advised that all the fees were nondeductible facilitative costs, so the corporation did not elect the Revenue Procedure 2011-29 safe harbor that treats 70 percent as nonfacilitative and capitalizes 30 percent. The corporation learned of the safe harbor later and requested relief before the IRS discovered the omission. The IRS found reasonable reliance on a qualified tax professional, no use of hindsight, and no prejudice to the government's interests. It gave the corporation 60 days to file the required election statement, without deciding whether the transaction or all claimed fees qualified for the safe harbor.

Ruling snapshot

• Question: May the corporation make a late safe-harbor election for success-based transaction fees under Revenue Procedure 2011-29?
• Outcome: approved, with 60 days to file the election statement
• Key authorities: IRC § 263(a); 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: 201732028                                         Third Party Communication: None
Release Date: 8/11/2017                                   Date of Communication: Not Applicable
Index Number: 9100.00-00
                                                          Person To Contact:
--------------------------------------------              ----------------, ID No. ------------------
--------------------------                                Telephone Number:
-----------------------------------                       ----------------------
------------------------------------                      Refer Reply To:
                                                          CC:ITA:B3
                                                          PLR-137035-16
                                                          Date:
                                                          May 15, 2017




LEGEND:

Taxpayer = ----------------------------------------------------
Buyer = --------------------------------------
Date 1 = ---------------------------
Date 2 = -------------------
Date 3 = -----------------------
Date 4 = --------------------------
Taxable Year = -------
$X = ------------------
Adviser 1 = ----------------------------
Adviser 2 = --------------------------------
Tax Preparer A = ----------------------
Tax Preparer B = ---------------------------



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

This responds to a letter ruling request dated Date 1, submitted by 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 with Buyer, which closed
Date 3. In connection with the sale, Taxpayer incurred $X of success-based fees for
PLR-137035-16                                2

services performed by Adviser 1 and Adviser 2 in the process of investigating or
otherwise pursing the transaction.

Tax Preparer A prepared Taxpayer’s consolidated return for Taxable Year and
discussed with Taxpayer the success-based fees that were incurred and paid by
Taxpayer in association with the transaction. Tax Preparer A and Taxpayer concluded
that the success-based fees were nondeductible facilitative costs and thus believed that
the safe harbor election of Rev. Proc. 2011-29 was unavailable. Accordingly, Tax
Preparer A did not make, nor advised Taxpayer to make, the election, resulting in none
of the success-based fees being claimed as a deduction on the election return and no
election statement being filed as required by Rev. Proc. 2011-29.

Around Date 4, Taxpayer became aware at a presentation that the success-based fees
did not have to be treated as facilitative costs that must be capitalized. Taxpayer
consulted Tax Preparer B to confirm the success-based fees could have been deducted
in part using the safe harbor election and asked that this relief request be prepared.

Taxpayer represents that this request for relief was made before the failure to make the
election was discovered by the Service.

                                          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 a taxpayer must
capitalize 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.

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).
PLR-137035-16                                  3

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
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 —
PLR-137035-16                                  4



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

(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, 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
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
PLR-137035-16                                5

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, including representations, provided by Taxpayer establishes that
Taxpayer acted reasonably and in good faith. Taxpayer reasonably relied on Tax Return
Preparer A, qualified tax professionals, that prepared, reviewed, and signed its federal
income tax return for Taxable Year and advised Taxpayer to treat the success-based
fees as nondeductible facilitative costs. Thus, Tax Return Preparer A did not file, and
did not advise Taxpayer to file, the election statement pursuant to Rev. Proc. 2011-29,
and Taxpayer was unaware of the necessity to file the statement in order to make the
election. In addition, the request for relief was made before the failure to make the
election was discovered by the Service.

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
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. Finally, Taxpayer is not using hindsight in requesting relief.

                                         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 and identifying the transaction and 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
PLR-137035-16                                6

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.

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)