Housing project received 120 days to make average-income election

Plain-English summary

The owner of a single-building low-income housing project intended to elect the average-income minimum set-aside under IRC § 42(g)(1)(C). Contemporaneous records showed that intent, but the owner inadvertently omitted the election from Form 8609. The IRS found that the owner met the standards for discretionary filing relief because it acted reasonably and in good faith and relief would not prejudice the government. It granted 120 days from the ruling date to file an amended Form 8609 making the intended election, together with a copy of the ruling. The IRS did not decide whether the project or building otherwise qualified for the low-income housing credit.

Ruling snapshot

• Question: Could the project owner receive additional time to make its intended average-income minimum set-aside election on Form 8609?
• Outcome: Approved, with 120 days to file an amended Form 8609
• Key authorities: IRC § 42(g)(1)(C), (l)(1); Treas. Reg. §§ 1.42-1(h), 301.9100-1, 301.9100-3

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 202539010
Third Party Communication: None
Release Date: 9/26/2025
Date of Communication: Not Applicable
Index Number: 42.00-00, 9100.01-00
Person To Contact:
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Telephone Number:
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Refer Reply To:
In Re: CC:ECE:B01
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PLR-111406-25
Date:
June 27, 2025

LEGEND

Taxpayer = -------------------------------------
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State = ------
Year 1 = -------
Year 2 = -------
BIN = ------------------
Address = -------------------------------------
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Dear ----------------:

This letter responds to your authorized representative's letter, dated May 13, 2025, submitted on behalf of Taxpayer, requesting an extension of time, pursuant to §§ 301.9100-1 and 301.9100-3 of the Procedure and Administration Regulations, to file an amended Form 8609, Low-Income Housing Credit Allocation and Certification, with respect to the election related to section 42(g)(1) of the Internal Revenue Code (Code).

According to the information submitted, Taxpayer owns and operates a single- building housing project (Project) in State. The building was placed in service in Year 1. Taxpayer elected under section 42(f)(1)(B) to begin the first year of the credit period in Year 2. The Project consists of one building for section 42 purposes. The building identification number associated with the Project is BIN. The Project is located at Address.

Taxpayer intended, as evidenced by Taxpayer’s contemporaneous documents, to make the average income minimum set-aside election for the Project. However, on the Form 8609 that Taxpayer submitted to the Internal Revenue Service (IRS), Taxpayer inadvertently failed to make such election.

PLR-111406-25
2

Section 42(g)(1) defines the term “qualified low-income housing project” as any project for residential rental property if the project meets the requirements of section 42(g)(1)(A), (B), or (C), whichever is elected by the taxpayer. The project meets the requirements of section 42(g)(1)(A) if 20 percent or more of the residential units in the project are both rent-restricted and occupied by individuals whose income is 50 percent or less of area median gross income. The project meets the requirements of section 42(g)(1)(B) if 40 percent or more of the residential units in the project are both rent- restricted and occupied by individuals whose income is 60 percent or less of area median gross income. The project generally meets the requirements of section 42(g)(1)(C) if 40 percent or more (25 percent or more in the case of a project described in section 142(d)(6)) of the residential units in the project are both rent restricted and occupied by individuals whose income does not exceed the imputed income limitation designated by the taxpayer with respect to the respective unit. Any election under section 42(g)(1), once made, is irrevocable.

Section 42(g)(3) provides that, in general, a building shall be treated as a qualified low-income building only if the project (of which such building is a part) meets the requirements of section 48(g)(1) not later than the close of the first year of the credit period for such building.

Section 301.9100-7T(b) of the temporary Procedure and Administration Regulations provides, in part, that the election under section 42(g)(1) is to be made in the certification required to be filed pursuant to section 42(l)(1).

Section 42(l)(1) describes the requisite certifications with respect to any qualified low-income building for the first taxable year of the credit period (first-year certifications). In the case of a failure to make the required certification on the date prescribed for it, unless it is shown that the failure is due to reasonable cause and not to willful neglect, no credit is to be allowable by reason of section 42(a) for the building for any taxable year ending before the certification is made.

Section 1.42-1(h) of the Income Tax Regulations provides, in part, that, unless otherwise provided in forms or instructions, a completed Form 8609 (or any successor form), which contains the first-year certifications, must be filed by the building owner with the IRS. The instructions to Form 8609 states, in relevant part, that a building owner must make a one-time submission of Form 8609 to the Low-Income Housing Credit (LIHC) Unit at the IRS Philadelphia campus (Service Center) no later than the due date (including extensions) of the first tax return with which the building owner is filing Form 8609-A, Annual Statement for Low-Income Housing Credit.

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 an election.

PLR-111406-25
3

Section 301.9100-1(b) defines the term “regulatory election” as including 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.

Under § 301.9100-1(c), the Commissioner has discretion to grant a reasonable extension of time under the rules set forth in §§ 301.9100-2 and 301.9100-3 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 E, G, H, and I.

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 § 301.9100-2.

Requests for relief under § 301.9100-3(a) will be granted when the taxpayer provides evidence to establish that the taxpayer acted reasonably and in good faith, and that granting relief will not prejudice the interests of the government.

Based solely on the facts submitted and the representations made, we conclude that the requirements of §§ 301.9100-1 and 301.9100-3 have been met. Accordingly, Taxpayer is granted an extension of time to make the election under section 42(g)(1)(C) for the Project for Year 2 by filing within 120 days from the date of this letter an amended Form 8609 that includes the intended election. The amended Form 8609 (along with a copy of this letter) is to be filed with the Philadelphia campus at the address provided in the instructions to Form 8609.

Except as specifically set forth above, we express or imply no opinion concerning the federal tax consequences of the facts described above under any provisions of the Code or regulations. In particular, we express or imply no opinion on whether the Project is a qualified low-income housing project and the building in the Project qualifies for the low-income housing credit under section 42.

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.

The ruling contained in this letter is based on the information submitted and representations made by 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 ruling, it is subject to verification on examination.

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

PLR-111406-25
4

Sincerely,

Associate Chief Counsel
(Energy, Credits, & Excise Tax)

/s/ Dillon J. Taylor

By:
Dillon J. Taylor
Senior Technician Reviewer, Branch 1
Office of Associate Chief Counsel
(Energy, Credits, & Excise Tax)

Enclosure:
Copy of this letter for section 6110 purposes

cc:
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