Consolidated group received 75 days to waive a loss carryback

Plain-English summary

A consolidated corporate group generated a consolidated net operating loss and carried it forward on its returns. The group intended to waive the loss's carryback period but relied on a tax professional who did not advise it to file the required election statement. It represented that no part of the loss had been or would be carried back and that it was not changing a return position exposed to an accuracy-related penalty. The IRS found reasonable reliance, good faith, and no prejudice to the government. It granted the parent corporation 75 days to amend the relevant return and attach the election, conditioned on the group's aggregate tax liability not being lower than if the election had been timely.

Ruling snapshot

• Question: May the consolidated group make a late election to relinquish the entire carryback period for its consolidated net operating loss?
• Outcome: Approved
• Key authorities: IRC § 172(b)(3); Treas. Reg. §§ 1.1502-21(b)(3) and 301.9100-1 through 301.9100-3

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 202524008
Third Party Communication: None
Release Date: 6/13/2025
Date of Communication: Not Applicable
Index Number: 172.01-00, 1502.21-00,
9100.22-00
Person To Contact:
--------------------------, ID No. ---------------- ----------------------------------------------- ----------------- ------------------------------------------- Telephone Number:
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Refer Reply To:
CC:CORP:B03
PLR-116379-24
Date:
March 17, 2025

LEGEND

Parent = -------------------------------------------

Date 1 = --------------------------

Company Official = -----------------------------------------------

Tax Professional = ---------------------------------------------------------------------

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

This letter ruling responds to a letter from your authorized representatives dated August 13, 2024, submitted on behalf of Parent, requesting an extension of time under
§ 301.9100-3 of the Procedure and Administration Regulations to make an election under § 1.1502-21(b)(3)(i) to relinquish the entire carryback period for Parent consolidated group's consolidated net operating loss ("CNOL") for the tax year ending Date 1 (the "Election"). The material information submitted is summarized below.

Parent is the common parent of a consolidated group (the "Parent Group"). The Parent Group generated a CNOL for the tax year ending Date 1. The Form 1120 filed by the Parent Group for its fiscal year ending Date 1, reflected a CNOL, which, along with a prior unused CNOL, was carried forward to the next fiscal year.

Parent has represented that the Parent Group has not carried back, and will not carry back, any portion of the CNOL to a prior consolidated return year of the Parent Group. Parent has also represented that no potion of the CNOL has been carried back, or will be carried back, to a separate return year (within the meaning of § 1.1502-1(e)) of any
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corporation that was a member of the Parent Group at any time during the tax year ended Date 1. Parent has further represented that Parent is not seeking to alter a return position for which an accuracy-related penalty has been or could be imposed under section 6662.

The Parent Group relied on Tax Professional to advise the Parent Group on the need to waive CNOL carryback under § 1.502-21(b)(3)(i) and § 172(b)(3). Parent assumed the remaining CNOL would be carried forward to subsequent fiscal years.

Section 1.1502-21(b)(3)(i) provides that a consolidated group may make an irrevocable election under § 172(b)(3) to relinquish the entire carryback period with respect to a CNOL for any consolidated return year. The election is made in a separate statement entitled "THIS IS AN ELECTION UNDER § 1.1502-21(b)(3)(i) TO WAIVE THE ENTIRE CARRYBACK PERIOD PURSUANT TO SECTION 172(b)(3) FOR THE FISCAL YEAR ENDING [insert consolidated return year] CNOLs OF THE CONSOLIDATED GROUP OF WHICH [insert name and employer identification number of common parent] IS THE COMMON PARENT." Section 1.1502-21(b)(3)(i) also provides that the statement must be filed with the group's income tax return for the consolidated return year in which the loss arises.

Under § 172(b)(1)(D), any net operating loss arising in a taxable year beginning after December 31, 2017, and before January 1, 2021 shall be a net operating loss carryback to each of the 5 taxable years preceding the taxable year of such loss. Under § 1.1502- 21(b)(3) and § 172(b)(3), any taxpayer entitled to a carryback period may elect to relinquish the entire carryback period with respect to a CNOL for any taxable year.

Under § 301.9100-1(c), the Commissioner has discretion to grant a reasonable extension of time to make a regulatory election, or a statutory election (but no more than six months in the case of a taxpayer who is abroad), under all subtitles of the Internal Revenue Code except subtitles E, G, H, and I.

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 a regulatory election. Section 301.9100-1(a). Section 301.9100-2 provides automatic extensions of time for making certain elections. Requests for relief under § 301.9100-3 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. Section 301.9100-3(a).

In this case, the time for filing the Election is fixed by the regulations (i.e. § 1502- 21(b)(3)(i)). Therefore, the Commissioner has discretionary authority under § 301.9100- 3 to grant an extension of time for Parent to file the Election, provided Parent establishes it acted reasonably and in good faith, the requirements of §§ 301.9100-1 and 301.9100-3 are satisfied, and granting relief will not prejudice the interests of the government.
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Information, affidavits, and representations submitted by Parent explain the circumstances that resulted in the failure to timely file a valid election. The information establishes that Parent reasonably relied on a qualified tax professional who failed to make, or advise Parent to make, the Election, and that the request for relief was filed before the failure to timely make the Election was discovered by the Internal Revenue Service. See § 301.9100-3(b)(1)(i) and (v).

Based on the facts and information submitted, including the representations made, we conclude that Parent has shown it acted reasonably and in good faith, the requirements of § § 301.9100-1 and 301.9100-3 are satisfied, and granting relief will not prejudice the interests of the government. Accordingly, an extension of time is granted under
§ 301.9100-3, until 75 days from the date on this letter, for Parent to file the Election with respect to the relinquishment of the entire carryback period for the Parent Group's CNOL for the tax year ending Date 1, as described above.

The above extension of time is conditioned on the Parent Group's tax liability (if any) being not lower, in the aggregate, for all years to which the Election applies, than it would have been if the Election had been timely made (taking into account the time value of money). No opinion is expressed as to the Parent Group's tax liability for the years involved. A determination thereof will be made by the applicable Director's office upon audit of the federal income tax returns involved.

Parent must file the Election in accordance with § 1.1502-21(b)(3)(i). The Parent Group's return for the tax year ending Date 1, having been filed consistent with a valid election having been made, must be amended to attach the election statement required by § 1.1502-21(b)(3)(i). A copy of this letter must be attached to the election statement. Alternatively, if the Parent Group files its returns electronically, Parent may satisfy this latter requirement by attaching a statement to its return that provides the date on, and control number (PLR-116379-24) of, this ruling.

We express no opinion as to the tax effects or consequences of filing the Election late under the provisions of any other section of the Code or regulations, or as to the tax treatment of any conditions existing at time of, or effects resulting from, filing the Election late that are not specifically set forth in the above ruling.

For the purposes of granting relief under § 301.9100-3, we relied on certain statements and representations made by Parent and Company Official. However, the Director should verify all essential facts. In addition, notwithstanding that an extension is granted under § 301.9100-3 to file the Election, penalties and interest that would otherwise be applicable, if any, continue to apply.

This ruling is directed only to the taxpayers requesting it. Section 6110(k)(3) of the Code provides that it may not be used or cited as precedent.
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Pursuant to the Power of Attorney on file with this office, copies of this letter are being sent to your authorized representative.

Sincerely,

Gerald B. Fleming
Senior Technician Reviewer, Branch 2
(Corporate)

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