Late relief granted for a partnership to make a section 754 basis-adjustment election

Plain-English summary

A section 754 election lets a partnership adjust the tax basis of its assets after a partner sells an interest, so the buyer's share of inside basis matches what they paid (often unlocking added depreciation). The election must be made on a timely filed partnership return for the year of the transfer. This taxpayer, a state limited partnership, had interests transferred to unrelated parties in a given year and filed its return on time but left off the section 754 election. It asked the IRS for extra time under Treasury Regulation section 301.9100-3, representing that it acted reasonably and in good faith and that relief would not prejudice the government. The IRS granted a 120-day extension, conditioned on the partnership and its partners recomputing basis (including any depreciation that would have been allowed) as if the election had been timely, even for years now closed by the statute of limitations. The ruling is a routine grant of 9100 relief for a missed section 754 election.

Ruling snapshot

• Question: Should the partnership get an extension of time under Treas. Reg. § 301.9100-3 to make a section 754 election after a transfer of partnership interests?
• Outcome: Approved (120-day extension, contingent on making the corresponding basis adjustments)
• Key authorities: IRC §§ 754, 743(b), 734(b); Treas. Reg. §§ 301.9100-1, 301.9100-3, 1.754-1(b)

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 201904011
Third Party Communication: None
Release Date: 1/25/2019
Date of Communication: Not Applicable
Index Number: 9100.15-00
Person To Contact:
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Telephone Number:
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------------------------------------------- Refer Reply To:
CC:PSI:03
PLR-120518-18
Date:
October 25, 2018

X = --------------------------------------------
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State = ------------
Date 1 = --------------------
Date 2 = ------------------------
Year 1 = ------

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

This responds to a letter dated June 5, 2018, submitted on behalf of X, requesting an extension of time under § 301.9100-3 of the Procedure and Administration Regulations to make an election under § 754 of the Internal Revenue Code (Code).

The information submitted states that X is a State limited partnership and has been classified as a partnership for federal income tax purposes since its organization on Date 1. In Year 1, interests in X were transferred to unrelated parties. X’s tax return was timely filed, but a § 754 election was not filed with the return. X represents that it has acted reasonably and in good faith and that granting relief will not prejudice the interest of the government.

Section 754 provides, in part, that if a partnership files an election, in accordance with the regulations prescribed by the Secretary, the basis of the 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)(1) of the Income Tax Regulations provides, in part, that an
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election under § 754 to adjust the basis of partnership property under 743(b) with respect to 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 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 the 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 Code except subtitles E, G, H, and I. Section 301.9100-1(b) defines the term “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 the election. Section 301.9100-2 provides the rules governing automatic extensions of time for making certain elections. 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 meet the requirements of § 301.9100-2. Under § 301.9100-3, a request for relief will be granted when the taxpayer provides evidence (including affidavits described in § 301.9100-3(e)) to establish to the satisfaction of the Commissioner that (1) the taxpayer acted reasonably and in good faith, and (2) the grant of relief will not prejudice the interests of the government.

Based solely on 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 from the date of this letter to make an election under § 754 effective for its taxable year ending on Date 2 and thereafter. The election should be made in a written statement filed with the appropriate service center for association with X’s return for its taxable year ending on Date 2. A copy of this letter should be attached to the election.

This ruling is contingent on X adjusting the basis of its properties to reflect any § 734(b) or 743(b) adjustments that would have been made if the § 754 election has been timely made. These basis adjustments must reflect any additional depreciation that would have been allowable if the § 754 election had been timely made, regardless of whether the statutory period of limitation on assessment or filing a claim for refund has expired for any year subject to this grant of late relief. Any depreciation deduction allowable for an open year is to be computed based upon the remaining useful life and using property basis as adjusted by the greater of any depreciation deduction allowed or allowable in any prior year had the § 754 election been timely made. Additionally, the partners of X must adjust the basis of their interests in X to reflect what that basis would be if the § 754 election had been timely made, regardless of whether the statutory period of limitation on assessment or filing a claim for refund has expired for any year
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subject to this grant of late relief. Specifically, the partners of X must reduce the basis of their interests in X in the amount of any additional depreciation that would have been allowable if the § 754 election had been timely made.

Except as specifically set forth above, we express or imply no opinion concerning the federal tax consequences of the facts described above under any other provision of the Internal Revenue Code and the regulations thereunder. In addition, § 301.9100-1(a) provides that the granting of an extension of time for making an election is not a determination that the taxpayer is otherwise eligible to make the election.

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.

This ruling contained in this letter is 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 that not verified any of the material submitted in support of the ruling request, it is subject to verification on examination.

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

Sincerely,

Associate Chief Counsel
(Passthroughs and Special Industries)

By: ___
Stacy L. Short
Senior Technician Reviewer, Branch 3
Office of Associate Chief Counsel
(Passthroughs & Special Industries)

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