IRS grants a corporation 120 more days to make section 59(e) elections its accountant forgot to attach

Plain-English summary

A corporation that files a consolidated return decided to elect, under Internal Revenue Code § 59(e), to deduct its research and experimental (R&E) expenditures ratably over 10 years rather than all at once. It told its accounting firm to make the election for several tax years, and it actually capitalized and amortized the R&E amounts on its returns consistent with the election, but because of an administrative error the firm never attached the statement that formally makes the election under Treasury Regulation § 1.59-1(b)(1). The company asked the IRS for more time under §§ 301.9100-1 and 301.9100-3, which allow relief for a missed regulatory election when the taxpayer acted reasonably and in good faith and giving relief will not prejudice the government. The IRS concluded those conditions were met and granted 120 days from the date of the letter to make the § 59(e) elections for each year by attaching a copy of the ruling to an amended consolidated return. As usual, the IRS was careful to say it was not deciding whether the company actually satisfies § 59(e) or § 174. This is a routine remedy for an election that a preparer intended to make but forgot to attach.

Ruling snapshot

• Question: May a corporation get an extension of time under § 301.9100-3 to make late § 59(e) elections for several years after its accounting firm failed to attach the required statements?
• Outcome: approved (120-day extension granted)
• Key authorities: IRC §§ 59(e), 174(a); Treas. Reg. §§ 1.59-1(b), 301.9100-1, 301.9100-3; Rev. Proc. 2020-29

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 202150006 Third Party Communication: None
Release Date: 12/17/2021 Date of Communication: Not Applicable
Index Number: 9100.02-03
Person To Contact:
---------------------- ------------------, ID No. -----------------
-------------------------- Telephone Number:
--------------------------------- --------------------
------------------ Refer Reply To:
----------------------------- CC:PSI:B06
--------------------------- PLR-107492-21
Date:
Re: Request for extension of time under September 13, 2021
§§ 301.9100-1 and 301.9100-3 of the
Procedure and Administration Regulations to
file an election pursuant to § 59(e) of the
Internal Revenue Code

LEGEND:

Taxpayer = -------------------------------------------------------------------------------
-------------------------

Firm = --------------------------

Taxable Years = -------------------------------------------------------------------------------
------------

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

   This letter responds to a letter dated March 31, 2021, submitted on behalf of

Taxpayer, requesting an extension of time under §§ 301.9100-1 and 301.9100-3 of the
Procedure and Administration Regulations to make an election under § 59(e) of the
Internal Revenue Code (Code) and § 1.59-1(b)(1) of the Income Tax Regulations to
deduct ratably over a 10-year period research and experimental (R&E) expenditures
incurred in the Taxable Years under § 174(a). This letter is being issued electronically
in accordance with Rev. Proc. 2020-29, 2020-21 I.R.B. 859. A paper copy will not be
mailed to Taxpayer.

                                                  FACTS

    Taxpayer represents that the facts are as follows:

   Taxpayer is a corporation and is the parent of a consolidated group for federal

income tax purposes. Taxpayer files its consolidated federal income tax return on the
basis of a calendar year and uses the accrual method as its overall method of
accounting.

   Taxpayer engaged Firm to prepare its consolidated federal income tax returns for

the Taxable Years. Prior to the filing of its tax returns for the Taxable Years, Taxpayer
had advised Firm of its decision to make an election under § 59(e) for each of the
Taxable Years. Taxpayer capitalized and amortized R&E expenditures on its tax
returns for each of the Taxable Years under § 59(e). Due to an administrative error,
Firm failed to attach the statement required to make the election under § 1.59-1(b)(1) to
the tax returns for each of the Taxable Years.

   Taxpayer represents that, in requesting an extension of time to make an election

under § 59(e) for each of the Taxable Years, it acted reasonably and in good faith and,
further, there is no prejudice to the interests of the government.

                             RULING REQUESTED

  Taxpayer requests an extension of time under §§ 301.9100-1 and 301.9100-3 to

make the election under § 59(e) for each of the Taxable Years.

                              LAW AND ANALYSIS

   Section 59(e)(1) provides, in relevant part, that any qualified expenditure to which

an election under § 59(e)(1) applies shall be allowed as a deduction ratably over the 10-
year period beginning with the taxable year in which such expenditure was made.

  Section 59(e)(2)(B) includes in the definition of "qualified expenditure" any amount

which, but for an election under § 59(e), would have been allowable as a deduction
(determined without regard to § 291) for the taxable year in which paid or incurred under
§ 174(a) (relating to R&E expenditures).

   Section 59(e)(3) provides that except as provided in § 59(e), no deduction shall

be allowed under any other section of the Code for any qualified expenditure to which
an election under § 59(e) applies.

  Section 59(e)(4)(A) provides that an election may be made under § 59(e)(1) with

respect to any portion of any qualified expenditure.

   Section 59(e)(4)(B) provides that any election under § 59(e) may be revoked only

with the consent of the Secretary.

   Section 1.59-1(b)(1) provides that an election under § 59(e) shall only be made by

attaching a statement to the taxpayer's income tax return (or amended return) for the
taxable year in which the amortization of the qualified expenditures subject to the § 59(e)
election begins. The statement must be filed no later than the date prescribed by law for
filing the taxpayer's original income tax return (including any extensions of time) for the
taxable year in which the amortization of the qualified expenditures subject to the § 59(e)
election begins. Additionally, the statement must include the taxpayer's name, address,
and taxpayer identification number, and the type and amount of qualified expenditures
identified in § 59(e)(2) that the taxpayer elects to deduct ratably over the applicable period
described in § 59(e)(1).

    Under § 301.9100-1(c), 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 Code except
subtitles E, G, H, and I.

  Section 301.9100-1(b) provides the term "regulatory election" includes an election

the due date of which is prescribed by a regulation published in the Federal Register.

  Sections 301.9100-1 through 301.9100-3 provide the standards used to determine

whether to grant an extension of time to make a regulatory election. Section 301.9100-
1(a).

   Section 301.9100-2 allows automatic extensions of time for making certain

elections. Section 301.9100-3 provides rules for requesting extensions of time for
regulatory elections that do not meet the requirements of § 301.9100-2.

   The Commissioner will grant requests for relief under § 301.9100-3 when the

taxpayer provides the evidence (including affidavits described in § 301.9100-3(e)) to
establish to the satisfaction of the Commissioner that the taxpayer acted reasonably and
in good faith, and the grant of relief will not prejudice the interests of the government.
Section 301.9100-3(a).

                                  CONCLUSION

    Based solely on the information submitted and the representations made, we

conclude that the requirements of §§ 301.9100-1 through 301.9100-3 have been
satisfied. Accordingly, the Commissioner grants Taxpayer an extension of time of 120
days from the date of this letter to make an election for each of the Taxable Years under
§ 59(e) and § 1.59-1(b)(1) to deduct ratably over a 10-year period its R&E expenditures
incurred in each of the Taxable Years. The § 59(e) election for each of the Taxable
Years must comply with the manner-of-election requirements of § 1.59-1(b)(1).

   In making the election for each of the Taxable Years, Taxpayer must attach a

copy of this letter ruling to its amended consolidated federal income tax return. We
have enclosed a copy for that purpose. Alternatively, if Taxpayer files its amended
consolidated federal income tax return electronically, it may satisfy this requirement by
attaching a statement to its amended return that provides the date and control number
of the letter ruling.

   The ruling contained in this letter is based upon information and representations

submitted by Taxpayer and accompanied by a penalties 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 a ruling, it is subject to verification on examination. Except
as specifically set forth above, we express no opinion concerning the federal tax
consequences of the facts described above under any other provision of the Code and
the regulations thereunder. Specifically, we express or imply no opinion concerning
whether Taxpayer satisfies the requirements of § 59(e) or § 174(a).

  This letter ruling is directed only to the taxpayer who requested it. Under

§ 6110(k)(3), a letter ruling may not be used or cited as precedent.

     In accordance with the power of attorney on file with this office, we are sending a

copy of this letter to your authorized representative. We are also sending a copy of this
letter to the LB&I Policy Office.

                                                 Sincerely,

                                                 Associate Chief Counsel
                                                 (Passthroughs and Special Industries)

                                                 Jennifer A. Records
                                       By:       _______________________________
                                                 Jennifer A. Records
                                                 Senior Technician Reviewer, Branch 6
                                                 Office of the Associate Chief Counsel
                                                 Passthroughs and Special Industries

Enclosure
Copy for § 6110 purposes

cc: