IRS consents to revoke a Section 83(b) election filed within the 30-day window

Plain-English summary

A taxpayer received restricted units from an employer that were subject to a substantial risk of forfeiture, then filed an election under section 83(b). An 83(b) election accelerates income tax to the time of grant instead of waiting until the units vest. Shortly afterward, and less than 30 days after the grant, the taxpayer asked the IRS for consent to revoke that election. An 83(b) election normally cannot be revoked without the Commissioner's consent, and consent is usually limited to cases involving a mistake of fact. But the IRS follows a broader principle that any election can be revoked on or before the due date for making it, and Revenue Procedure 2006-31 says a request to revoke an 83(b) election is generally granted if filed by that due date (30 days after the transfer). Because the taxpayer's revocation request came within that 30-day window, the IRS granted consent to revoke.

Ruling snapshot

• Question: May the taxpayer revoke a section 83(b) election when the revocation request was filed within 30 days of the property transfer?
• Outcome: Approved (consent to revoke the election granted)
• Key authorities: IRC § 83(b); Treas. Reg. § 1.83-2(a), (f); Rev. Proc. 2006-31, 2006-2 C.B. 32

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 202149009
Third Party Communication: None
Release Date: 12/10/2021
Date of Communication: Not Applicable
Index Number: 83.02-04
Person To Contact:
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Telephone Number:
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Refer Reply To:
CC:EEE:EB:EC
PLR-116200-21
Date:
September 15, 2021

Legend
Date 1 = -----------------
x = --------
Employer = ---------------------------------------- Date 2 = ------------------

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

This letter is in response to your request, dated April 26, 2021, in which you asked for consent to revoke an election you made under § 83(b) of the Internal Revenue Code (Code). The facts, as represented, are as follows.

On Date 1, you were granted x restricted units of Employer, subject to a substantial risk of forfeiture. On Date 2, you filed an election under § 83(b) of the Code with the Internal Revenue Service Center where you file your individual tax return. The § 83(b) election referenced all x restricted units received from Employer on Date 1. On April 28, 2021, less than 30 days after Date 1, you sent a letter to this office requesting consent to revoke your § 83(b) election.

Section 83 of the Code sets forth the rules for transfers of property in connection with the performance of services. Section 83(a) provides that the excess of the fair market value of the property transferred, at the time the property becomes substantially vested, over the amount (if any) paid for the property, shall be included as compensation in the service provider's gross income for the taxable year in which the property becomes substantially vested. Property is substantially vested when it is either transferable or no longer subject to a substantial risk of forfeiture.

Section 83(b) of the Code and § 1.83-2(a) of the Income Tax Regulations (Regulations) permit the service provider to elect to include in gross income the excess (if any) of the fair market value of the property at the time of transfer over the amount (if any) paid for the property, as compensation for services. Under § 83(b)(2) of the Code, an election made under § 83(b) must be made in accordance with the regulations thereunder and must be filed with the Internal Revenue Service no later than 30 days
PLR-116200-21
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after the date that the property is transferred to the service provider.

Section 83 of the Code and § 1.83-2(f) of the Regulations provide that an election under § 83(b) may not be revoked without the consent of the Commissioner. Section 1.83-2(f) provides that consent to revoke an election under § 83(b) will be granted only in a case where the transferee is under a mistake of fact as to the underlying transaction and must be requested within 60 days of the date on which the mistake first became known to the person who made the election. The Service has recognized the principle that an election made under the Code or Regulations may be revoked on or before the due date for making the election. Section 2.08 of Rev. Proc. 2006-31, 2006- 2 C.B. 32, provides that a request for consent to revoke a § 83(b) election will generally be granted if the request is filed on or before the due date for making that § 83(b) election.

In the instant case, you filed your request to revoke your § 83(b) election within the 30 day time period allowed under § 83(b) for making the election. Based solely on the representations provided and the information and documents submitted, consent to revoke your § 83(b) election is granted.

The rulings contained in this letter are based upon information and representations submitted by you and accompanied by a penalty of perjury statement executed by you. This office has not verified any of the material submitted in support of the request for ruling, and such material is subject to verification on examination. Except as specifically ruled above, no opinion is expressed as to the federal tax consequences of the transaction described above under any other provision of the Code. Specifically, no opinion is expressed concerning other tax consequences of § 83 and its applicability to the transaction described above. This ruling is directed only to the taxpayer who requested it. Section 6110(k)(3) of the Code provides that it may not be used or cited as precedent. A copy of this letter should be attached to any income tax return to which it is relevant.

Sincerely,

THOMAS D. SCHOLZ
Senior Counsel
Executive Compensation Branch
Office of the Associate Chief Counsel
(Employee Benefits, Exempt
Organizations and Employment Taxes)

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