Partnership receives 120 days for section 754 election

Plain-English summary

A limited liability company taxed as a partnership experienced a transfer of a partnership interest after a member died. Although the partnership timely filed its return for the transfer year, it inadvertently failed to make a section 754 election and had relied on its tax adviser. The partnership represented that it acted reasonably and in good faith, that relief would not prejudice the government, and that it was not using hindsight. The IRS granted 120 days to file the election effective for the transfer year. The ruling did not decide whether the entity otherwise qualified as a partnership for federal tax purposes.

Ruling snapshot

• Question: May the partnership file a late section 754 election for the year of the interest transfer?
• Outcome: approved
• Key authorities: IRC §§ 734(b), 743(b), 754; Treas. Reg. §§ 1.754-1(b), 301.9100-1, 301.9100-3

Full text (IRS public release)

Internal Revenue Service                                       Department of the Treasury
                                                               Washington, DC 20224

Number: 201742001                                              Third Party Communication: None
Release Date: 10/20/2017                                       Date of Communication: Not Applicable
Index Number: 754.02-00, 9100.00-00
                                                               Person To Contact:
--------------------------------                               ---------------------, ID No. ------------------
-----------------------------------------------------          Telephone Number:
--------------------------                                     ----------------------
--------------------------------------                         Refer Reply To:
                                                               CC:PSI:B01
                                                               PLR-101535-17
                                                               Date:
                                                               July 11, 2017




                                                     LEGEND


X                          =         ---------------------------------
----------------------------------------------------------------------

A                          =         ---------------------------
----------------------------------------------------------------------------------------

B                          =         --------------------
------------------------------------------------------------------------

C                          =         -----------------------------------
------------------------------------------------------------------------

D                          =         -----------------------------------
------------------------------------------------------------------------

State                      =        --------------

d1                         =        --------------------

Year                       =        -------


Dear -------------:
PLR-101535-17                                 2

      This letter responds to a letter dated December 28, 2016, and subsequent
correspondence, submitted on behalf of X, requesting an extension of time under
§ 301.9100-3 of the Procedure and Administration Regulations for X to file an election
under § 754 of the Internal Revenue Code.

                                          FACTS

       X was formed as a limited liability company in State. X is treated as a
partnership for Federal tax purposes. The members of X were A, B, C, and D before
d1, when A died. B acquired A’s interest in X. X relied on its tax advisor for advice. X’s
partnership return for Year, the year of the acquisition of A’s interest, was timely filed.
However, X inadvertently failed timely to make a § 754 election. X represents that it has
acted reasonably and in good faith, that granting relief will not prejudice the interests of
the government, and that it is not using hindsight in making the election.

                                   LAW AND ANALYSIS

         Section 754 provides that if a partnership files an election, in accordance with the
regulations prescribed by the Secretary, the basis of partnership property is adjusted, in
the case of a transfer of a partnership interest, in the manner provided in § 743. Such
an election shall apply with respect to all distributions of property by the partnership and
to all transfers of interests in the partnership during the taxable year with respect to
which the election was filed and all subsequent taxable years.

        Section 1.754-1(b) of the Income Tax Regulations provides that an election
under § 754 to adjust the basis of partnership property under §§ 734(b) and 743(b), with
respect to a distribution of property to a partner or a transfer of an interest in a
partnership, shall be made in a written statement filed with the partnership return for the
taxable year during which the distribution or transfer occurs. For the election to be
valid, the return must be filed not later than the time prescribed by § 1.6031-1(e)
(including extensions thereof) for filing the return for that taxable year.

       Section 301.9100-1(c) provides that the Commissioner may grant a reasonable
extension of time to make a regulatory election, or a statutory election (but no more than
6 months except in the case of a taxpayer who is abroad), under all subtitles of the
Internal Revenue Code except subtitles E, G, H, and I. Section 301.9100-1(b) provides
that the term "regulatory election" includes an election whose due date is prescribed by
a regulation published in the Federal Register.

       Sections 301.9100-2 and 301.9100-3 provide the standards the Commissioner
will use to determine whether to grant an extension of time to make an election.

      Section 301.9100-3 provides the standards the Commissioner will use to
determine whether to grant an extension of time for regulatory elections that do not
PLR-101535-17                                 3

meet the requirements of § 301.9100-2. Under § 301.9100-3, a request for relief will be
granted when the taxpayer provides evidence 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.

                                      CONCLUSION

       Based solely upon the information submitted and the representations made, we
conclude that the requirements of §§ 301.9100-1 and 301.9100-3 have been satisfied.
As a result, X is granted an extension of time of 120 days following the date of this letter
to make an election under § 754 effective for Year. The election should be made in a
written statement filed with the appropriate service center. A copy of this letter should
be attached to the § 754 election. A copy is enclosed for that purpose.

       Except as expressly set forth above, we express or imply no opinion concerning
the federal tax consequences of the facts discussed above under any other provision of
the Code. Specifically, we express or imply no opinion as to whether or not X is a
partnership for federal tax purposes.

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

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


                                       Sincerely,

                                       John P. Moriarty
                                       Acting Associate Chief Counsel
                                       (Passthroughs & Special Industries)

                                       Joy C. Spies

                                       _______________________________
                                       Joy C. Spies
                                       Senior Technician Reviewer, Branch 1
                                       Office of the Associate Chief Counsel
                                       (Passthroughs & Special Industries)


Enclosures (2)
      Copy of this letter
      Copy for § 6110 purposes