Parent may make a late CNOL carryback waiver

Plain-English summary

A consolidated group incurred a consolidated net operating loss and intended to waive the entire carryback period, but it did not file a valid election with the loss-year return. The group filed its other returns consistently with that intended waiver and represented that it had not carried any of the loss to an earlier year. The parent reasonably relied on a qualified tax professional, and it sought relief before the IRS discovered the omission. The IRS found that the parent acted reasonably and in good faith and that relief would not prejudice the government. It granted 60 days to amend the loss-year return and attach the required election statement, subject to an aggregate-tax-liability condition.

Ruling snapshot

• Question: Could the consolidated group make a late election to relinquish the carryback period for its consolidated net operating loss?
• Outcome: Approved, with 60 days to file and subject to the aggregate-tax-liability condition.
• Key authorities: IRC § 172(b)(3); Treas. Reg. §§ 1.1502-21(b)(3)(i) and 301.9100-3.

Full text (IRS public release)

Internal Revenue Service                                          Department of the Treasury
                                                                  Washington, DC 20224

Number: 201636016                                                 Third Party Communication: None
Release Date: 9/2/2016                                            Date of Communication: Not Applicable
Index Number: 9100.22-00, 1502.21-00
                                                                  Person To Contact:
-----------------                                                 -----------------------, ID No. ----------------
-------------------------------------------------                 Telephone Number:
------------------------                                          ------------------
--------------------------                                        Refer Reply To:
                                                                  CC:CORP:B01
                                                                  PLR-112612-16
                                                                  Date:
                                                                  May 31, 2016


Legend

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

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

Date 2                     =        ---------------------------

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

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

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

This letter responds to a letter dated April 14, 2016, and subsequent correspondence,
submitted on behalf of Parent, requesting an extension of time under §§ 301.9100-1
through 301.9100-3 of the Procedure and Administration Regulations to make an
election. The extension is being requested for Parent to make an election under
§ 1.1502-21(b)(3)(i) to relinquish the entire carryback period for the Parent consolidated
group’s consolidated net operating loss (“CNOL”) for the tax year ending Date 1 (the
“Election”). Additional information was submitted in a letter dated May 10, 2016. The
material information submitted for consideration is summarized below.

Parent was the common parent of a consolidated group (“Parent Group”) for the
relevant years. Parent Group sustained a CNOL in the tax year ending on Date 1.
Parent intended to relinquish the carryback period for its consolidated group’s CNOL on
its tax return for the tax year ending Date 1. All prior and subsequent returns for Parent
Group were filed consistent with a valid election having been made. However, for
various reasons, a valid election was not filed. After Date 2, the date that the return and
PLR-112612-16                                2

the Election were due (with extensions), it was discovered that a valid election was not
filed. Subsequently, this request was submitted for an extension of time to file a valid
election.

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

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 [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 § 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 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.

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. Section 301.9100-3 provides extensions of time for making
regulatory elections that do not meet the requirements of § 301.9100-2. 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., § 1.1502-
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.
PLR-112612-16                                  3


Information, affidavits, and representations submitted by Parent, Company Official, and
Tax Professional 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
§ 301.9100-1, until 60 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 CNOL for the
tax year ending Date 1, as described above.

The above extension of time is conditioned on the taxpayers’ (Parent and the members
of its consolidated group) 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 taxpayers’ tax liability for the years involved. A determination thereof will be made
by the 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). 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
requirement by attaching a statement to its return that provides the date and control
number of this letter 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 and regulations, or as to the tax
treatment of any conditions existing at the time of, or resulting from, filing the Election
late that are not specifically set forth in the above ruling.
PLR-112612-16                                  4

For purposes of granting relief under § 301.9100-3, we relied on certain statements and
representations made by Parent, Company Official, Tax Professional. However, the
Director should verify all essential facts. Moreover, 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 letter is directed only to the taxpayer who requested it. Section 6110(k)(3) provides
that it may not be used or cited as precedent.

Pursuant to the power of attorney on file in the office, a copy of this letter is being sent
to your authorized representative.



                                           Sincerely,



                                           _Ken Cohen____________________
                                           Ken Cohen
                                           Senior Technician Reviewer, Branch 3
                                           Office of Associate Chief Counsel
                                           (Corporate)