Partnership received 60 days to elect success-fee safe harbor

Plain-English summary

A partnership paid financial advisers success-based fees in connection with its acquisition. Its return preparer applied the Revenue Procedure 2011-29 safe harbor, which treats 70 percent of qualifying fees as nonfacilitative and 30 percent as capitalizable, but inadvertently omitted the required election statement from the original return. The IRS found that the partnership reasonably relied on a qualified tax professional, acted in good faith, and would not gain an aggregate tax advantage from late relief. It granted 60 days to file an amended return containing the safe-harbor election statement.

Ruling snapshot

• Question: May the partnership make a late election for the Revenue Procedure 2011-29 success-based-fee safe harbor?
• Outcome: approved, with 60 days to file an amended return containing the required election statement
• Key authorities: IRC § 263(a); Treas. Reg. § 1.263(a)-5; Treas. Reg. §§ 301.9100-1 and 301.9100-3; Rev. Proc. 2011-29

Full text (IRS public release)

Internal Revenue Service                                      Department of the Treasury
                                                              Washington, DC 20224

Number: 201940002                                             Third Party Communication: None
Release Date: 10/4/2019                                       Date of Communication: Not Applicable
Index Number: 263.00-00, 9100.00-00
                                                              Person To Contact:
-------------------------------------------------             --------------------------, ID No. ----------------
----------------------                                        ----------------
------------------------------------                          Telephone Number:
                                                              --------------------
------------------------                                      Refer Reply To:
--------------------------------------------------            CC:ITA:B02
                                                              PLR-103585-19
                                                              Date:
                                                              July 09, 2019




Taxpayer       =   ----------------
A              =   -----------------------------------------------------
B              =   -----------------------------------------------------------------
C              =   --------------------------------------------------------
D              =   -----------------------------------------------------------------------------
E              =   ---------------------------------------------------------------------------------
F              =   ----------------------------------------------
G              =   -----------------------------------------
Firm           =   ----------------------------------
Date 1         =   ------------------
Date 2         =   -------------
Date 3         =   ---------------------
State          =   ------------
V              =   -------
W              =   ----
X              =   -----------------------------
Y              =   -----
Z              =   -------

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

This responds to a letter ruling request dated January 11, 2019, supplemented by a
letter dated June 24, 2019, 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 the
taxable year ending on Date 1.

PLR-103585-19                                2

                                         FACTS

Taxpayer represents the following:

Taxpayer is an LLC organized under the laws of State. Taxpayer is a partnership for
federal income tax purposes, has a calendar year end, and uses the accrual method of
accounting. Taxpayer is in the business of providing X. Taxpayer is owned V% by A
and W% by B. On Date 3 the following transactions occurred to effect the acquisition of
Taxpayer by C (“Company Merger”):

Certain members of B (“Rollover Members”) contributed their interests in Taxpayer to E.
Upon consummation of the Company Merger, each issued and outstanding share of
common unit of E was automatically converted into units of Taxpayer.

E merged with and into Taxpayer with Taxpayer surviving. Each issued and outstanding
share of common unit of E, including the units received by Rollover Members of B, was
automatically converted into units of Taxpayer. In addition, B (other than the rollover
members), received cash in exchange for their units in Taxpayer.

D merged with and into A, with A surviving. Each issued and outstanding share of A
common stock was converted into the right to receive cash. The preferred stock of A
remained outstanding.

Immediately after these transactions, C owned Y% of the common stock of A and
indirectly, through A, owned Z% of interest in Taxpayer.

Taxpayer had engaged F as a financial advisor for services performed in the process of
investigating or otherwise pursuing its acquisition by C. Taxpayer had also engaged G
as a financial advisor for services performed in the process of investigating the
acquisition. The fees paid by Taxpayer to F and G were contingent upon the success of
the acquisition. Taxpayer asserts that the fees were contingent upon the successful
closing of the acquisition as described under section 1.263(a)-5(f) of the Income Tax
Regulations.

Taxpayer engaged Firm to prepare its federal income tax return for taxable year ending
on Date 1. Firm elected to use the safe harbor election for allocating success-based
fees under Rev. Proc. 2011-29 in preparing Taxpayer’s federal income tax return for
taxable year ending on Date 1. On Date 2, Firm discovered that when preparing the
Election Return, it inadvertently did not attach the Election Statement for the Success-
Based Fees.

Firm concluded that the substantive requirements of Rev. Proc. 2011-29 were met, but
that Firm inadvertently overlooked the requirement of filing the election statement for the
Success-Based Fees, as required by Rev. Proc. 2011-29. Taxpayer asserts it was

PLR-103585-19                                 3

unaware that the Election Statement was required to be attached to the Election Return
and therefore did not detect it was missing.

                                           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)-1(d)(3) provides that no deduction is
allowed for an amount paid to acquire or create an intangible, which under sections
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 section 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, 89-90 (1992);
Woodward v. Commissioner, 397 U.S. 572, 575-576 (1970).

Under section 1.263(a)-5, a taxpayer must capitalize an amount paid to facilitate a
business acquisition or reorganization transaction described in section 1.263(a)-5(a). In
general, an amount is paid to facilitate a transaction described in section 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 section 1.263(a)-5(a), or success-based fee, is
presumed to facilitate the transaction. A taxpayer may rebut the presumption by
maintaining 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.

To reduce controversy between the IRS and taxpayers over the documentation required
to allocate success-based fees between the activities that facilitate the transaction and
activities that do not facilitate the transaction, the IRS issued Rev. Proc. 2011-29. The
revenue procedure states that the IRS will not challenge a taxpayer's allocation of a
success-based fee between activities that facilitate a transaction described in section
1.263(a)-5(e)(3) and activities that do not facilitate the transaction if the taxpayer --

(1) treats 70 percent of the amount of the success-based fee as an amount that does
not facilitate the transaction;

PLR-103585-19                                  4


(2) capitalizes the remaining 30 percent as an amount that does facilitate the
transaction; and

(3) attaches 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.

The revenue procedure applies to covered transactions described in section 1.263(a)-
5(e)(3), which include --

(i) A taxable acquisition by the taxpayer of assets that constitute a trade or business;

(ii) A taxable acquisition of an ownership interest in a business entity (whether the
taxpayer is the acquirer in the acquisition or the target of the acquisition) if, immediately
after the acquisition, the acquirer and the target are related within the meaning of
section 267(b) or section 707(b); or

(iii) A reorganization described in section 368(a)(1)(A), (B), or (C) or a reorganization
described in section 368(a)(1)(D) in which stock or securities of the corporation to which
the assets are transferred are distributed in a transaction which qualifies under section
354 or 356 (whether the taxpayer is the acquirer or the target in the reorganization).

Sections 301.9100-1 through 301.9100-3 provide the standards the Commissioner uses
to determine whether to grant an extension of time to make a regulatory 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 section 301.9100-2.

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,
procedure, notice or announcement published in the Internal Revenue Bulletin.

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
six 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 301.9100-3(a) provides extensions of time to make a regulatory election under
Code sections other than those for which section 301.9100-2 expressly permits
automatic extensions. Requests for extensions of time for regulatory elections 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

PLR-103585-19                                 5

reasonably and in good faith, and granting relief will not prejudice the interests of the
government.

Section 301.9100-3(b)(1) states 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) 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, including a tax professional
employed by the taxpayer, and the tax professional failed to make, or advise the
taxpayer to make the election.

Under section 301.9100-3(b)(3), 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 has been or
could be imposed under section 6662 at the time the taxpayer requests relief (taking
into account section 1.6664-2(c)(3)) and the new position requires or permits 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. Section 301.9100-3(c)(1)(i) provides, in part, that the interests of
the government are prejudiced if granting relief would result in the 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 (taking into account the
time value of money). Section 301.9100-3(c)(1)(ii) provides, in part, that the interests of

PLR-103585-19                               6

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 section 6501(a) before the taxpayer’s receipt of a ruling granting
relief.

ANALYSIS

Taxpayer's election is a regulatory election, as defined under section 301.9100-1(b),
because the due date of the election is prescribed in section 1.263(a)-5(f). The
Commissioner has the authority under sections 301.9100-1 and 301.9100-3 to grant an
extension of time to file a late regulatory election.

Taxpayer represents that for federal income tax purposes the transaction was a taxable
acquisition of an ownership interest in a business entity and immediately after the
transaction, Taxpayer and Acquirer were related within the meaning of sections 267(b)
or 707(b). The transaction thus qualifies as a covered transaction described in section
1.263(a)-5(e)(3)(ii).

Taxpayer in this case has represented that it requested relief before the failure to make
the regulatory election was discovered by the Service and that it reasonably relied on a
qualified tax professional, and the tax professional failed to make or advise Taxpayer to
make, the election. Thus, under sections 301.9100-3(b)(1)(i) and (v), Taxpayer will be
deemed to have acted reasonably and in good faith. Taxpayer has also represented
that none of the circumstances listed in section 301.9100-3(b)(3) apply.

Based on the facts of the case Taxpayer provided, granting an extension of time to file
the election will not prejudice the interests of the government under section 301.9100-
3(c)(1). Taxpayer has represented that granting relief would not result in a lower tax
liability in the aggregate for all taxable years affected by the election than Taxpayer
would have had if the election had been timely made (taking into account the time value
of money). Furthermore, Taxpayer has represented that the taxable year in which the
regulatory election should have been made and any taxable years that would have been
affected had it been timely made, are not closed by the period of assessment.

CONCLUSION

In the present situation, the requirements of sections 301.9100-1 and 301.9100-3(b)(1)
of the regulations have been satisfied. The information and representations made by
Taxpayer establish that Taxpayer acted reasonably and in good faith. Furthermore,
granting an extension will not prejudice the interests of the Government under section
301.9100-3(c)(1). Taxpayer represented that it 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 than Taxpayer would have if the election were made by the original deadline for

PLR-103585-19                                 7

making the election. Taxpayer also represented that the period of assessment for its
taxable year ending on Date 1 will not be closed before receipt of a ruling. Accordingly,
Taxpayer is granted an extension of time until 60 days following the date of this ruling to
file an amended return for its taxable year ending Date 1 to elect safe harbor treatment
of its success-based fees under section 4.01(3) of Rev. Proc. 2011-29. The amended
return must include an election statement stating that Taxpayer 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 the taxpayer and accompanied by a penalty of perjury statement executed
by an appropriate party. 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
federal income tax consequences of any aspect of any transaction or item discussed or
referenced in this ruling, 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 must be attached to any income tax return to which it is relevant.
Alternatively, taxpayers filing their returns electronically may satisfy this requirement by
attaching a statement to their return that provides the date and control number of the
letter ruling.

In accordance with the Power of Attorney on file with this office, a copy of this letter is
being sent to your authorized representative. 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,



                                       David B. Silber
                                       Acting Senior Technician Reviewer, Branch 2
                                       (Income Tax & Accounting)