Omitted success-fee election statement received relief

Plain-English summary

A corporation paid success-based fees in an acquisition and reported them using the Revenue Procedure 2011-29 safe harbor, deducting 70 percent and capitalizing 30 percent. Its return preparer failed to attach the required election statement, and the short-period return also listed the wrong year-end date. The IRS found that the corporation intended to make the election, reasonably relied on a qualified tax professional, sought relief before IRS discovery, and was not using hindsight. Because relief would not prejudice the government's interests, the IRS granted 60 days to file the election statement identifying the transaction, correct year-end, and deducted and capitalized amounts. The ruling did not decide whether the transaction or all fees qualified for the safe harbor.

Ruling snapshot

• Question: May the corporation file a late election statement for the success-based-fee safe harbor after reporting the intended 70/30 treatment on its return?
• Outcome: approved, with 60 days to file the statement
• Key authorities: IRC §§ 162, 263(a); Treas. Reg. §§ 1.263(a)-5, 301.9100-1, 301.9100-3; Rev. Proc. 2011-29

Full text (IRS public release)

Internal Revenue Service                                      Department of the Treasury
                                                              Washington, DC 20224

Number: 201732026                                             Third Party Communication: None
Release Date: 8/11/2017                                       Date of Communication: Not Applicable
Index Number: 9100.00-00
                                                              Person To Contact:
---------------------------------------                       -----------------, ID No. ------------------
----------------------------------------                      Telephone Number:
--------------------------                                    ----------------------
                                                              Refer Reply To:
---------------------------------------------                 CC:ITA:B03
                                                              PLR-139007-16
                                                              Date:
-----------------------------------------------               May 3, 2017
--------------------------------------


                  TY: -------

LEGEND:
Taxpayer                        =     ---------------------------------------
Parent                          =     -----------------------------------------------------
Corporation                     =     -----------------------------------------------------------------------------
                                      ---
Tax Return Preparer             =     ----------------------------
Date 1                          =     --------------------------
Date 2                          =     -------------------
Date 3                          =     -----------------------
Date 4                          =     -----------------------
Taxable Year                    =     -------
$X                              =     ------------------


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

This responds to a letter ruling request dated Date 1 submitted on behalf of Taxpayer.
Taxpayer requests an extension of time under §§ 301.9100-1 and 301.9100- 3 of the
Procedure and Administration Regulations to make a late election concerning the
treatment of success-based fees in accordance with Rev. Proc. 2011-29, 2011-1 C.B.
746, which requires that a statement be attached to Taxpayer's original federal income
tax return for Taxable Year.

                                                     FACTS

On Date 2, Taxpayer and Parent agreed to consummate a transaction with Corporation
whereby Corporation would acquire all of the outstanding stock in Taxpayer. The
transaction included a series of related and interdependent steps and closed on Date 3.
As a result of the transaction, Corporation acquired 100% of the outstanding stock of
PLR-139007-16                                2

Taxpayer. Immediately following the transaction, Taxpayer was related to Corporation
within the meaning for § 267(b) of the Internal Revenue Code. Corporation and its
various corporate subsidiaries elected to file a consolidated tax for federal income tax
purposes. As a result, Taxpayer filed a short tax year federal income tax return for the
period ended Date 3 pursuant to § 1.1502-76 of the Income Tax Regulations. The
Taxable Year tax return incorrectly stated that it was for the short period ended Date 4
instead of Date 3.

In the process of investigating or otherwise pursuing the transaction, Taxpayer engaged
the services of certain financial advisers to facilitate the acquisition. The financial
advisers agreed to be paid only upon successful consummation of the acquisition (the
success-based fees). Taxpayer paid the financial advisers $X upon the closing.

Taxpayer engaged Tax Return Preparer to prepare and timely file the Taxable Year
federal income tax return. Taxpayer capitalized 30 percent of the success-based fees
under § 263(a) and treated the remaining 70 percent of the success-based fees as
deductible trade or business expenses under § 162, pursuant to the safe harbor election
under section 4 of Rev. Proc. 2011-29. Tax Return Preparer however, failed to attach
the election statement required by Section 4.01(3) of the revenue procedure to
Taxpayer’s federal income tax return.

Subsequently, Tax Return Preparer discovered that Taxpayer’s election statement was
not attached to its timely filed original federal income tax return, as required by Rev.
Proc. 2011-29. Tax Return Preparer notified Taxpayer. In response, Taxpayer
engaged Tax Return Preparer to prepare a relief request.

                                          LAW

Section 263(a) provides generally that no deduction is allowed for any amount paid out
for new buildings or for permanent improvements or betterments made to increase the
value of any property or estate or any amount expended in restoring property or in
making good the exhaustion thereof for which an allowance is or has been made.

Section 1.263(a)-1(d)(3) of the Income Tax Regulations provides that no deduction is
allowed for an amount paid to acquire or create an intangible, which under §§ 1.263(a)-
4(c)(1)(i) and 1.263(a)-4(d)(2)(i)(A) includes an ownership interest in a corporation or
other entity. See also § 1.263(a)-4(a).

In the case of an acquisition or reorganization of a business entity, costs that are
incurred in the process of acquisition and that produce significant long-term benefits
must be capitalized. See INDOPCO, Inc. v. Commissioner, 503 U.S. 79 (1992);
Woodward v. Commissioner, 397 U.S. 572 (1970).

Under § 1.263(a)-5, a taxpayer must capitalize an amount paid to facilitate the business
PLR-139007-16                                  3

acquisition or reorganization transactions described in § 1.263(a)-5(a). In general, an
amount is paid to facilitate a transaction described in § 1.263(a)-5(a) if the amount is
paid in the process of investigating or otherwise pursuing the transaction. Whether an
amount is paid in the process of investigating or otherwise pursuing the transaction is
determined based on all of the facts and circumstances. Section 1.263(a)-5(b)(1).

Section 1.263(a)-5(f) provides that an amount that is contingent on the successful
closing of a transaction described in § 1.263(a)-5(a) (i.e., a success-based fee) is an
amount paid to facilitate the transaction except to the extent the taxpayer maintains
sufficient documentation to establish that a portion of the fee is allocable to activities
that do not facilitate the transaction. This documentation must be completed on or
before the due date of the taxpayer's timely filed original federal income tax return
(including extensions) for the taxable year during which the transaction closes.

Section 4.01 of Rev. Proc. 2011-29 provides a safe harbor election for taxpayers that
pay or incur success-based fees for services performed in the process of investigating
or otherwise pursuing a covered transaction described in § 1.263(a)-5(e)(3). In lieu of
maintaining the documentation required by § 1.263(a)-5(f), a taxpayer may elect to
allocate a success-based fee between activities that facilitate the transaction and
activities that do not facilitate the transaction by treating 70 percent of the amount of the
success-based fee as an amount that does not facilitate the transaction and by
capitalizing the remaining 30 percent as an amount that does facilitate the transaction.
In addition, the taxpayer must attach a statement to its original federal income tax return
for the taxable year the success-based fee is paid or incurred, stating that the taxpayer
is electing the safe harbor, identifying the transaction, and stating the success-based
fee amounts that are deducted and capitalized.

It is this last requirement that Taxpayer requests permission to accomplish with this
ruling request. Taxpayer requests permission with this ruling request to attach the
statement required by section 4.01 of Rev. Proc. 2011-29 to its return, by amending its
original filed return and superseding it with a return with the proper election statement
completed and attached.

Section 301.9100-1(c) provides that 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 certain regulatory elections. Section 301.9100-1(b) defines a “regulatory
election” as 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.

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. 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
PLR-139007-16                                  4

requirements of § 301.9100-2.

Section 301.9100-3(a) provides that requests for extensions of time for regulatory
elections (other than automatic changes covered under section 301.9100-2) will be
granted when the taxpayer provides evidence (including affidavits described in the
regulations) 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(b)(1) provides that a taxpayer will be deemed to have acted
reasonably and in good faith if the taxpayer —

(i) requests relief before the failure to make the regulatory election is discovered by the
Service;

(ii) inadvertently failed to make the election because of intervening events beyond the
taxpayer's control;

(iii) failed to make the election because, after exercising due diligence, the taxpayer was
unaware of the necessity for the election;

(iv) reasonably relied on the written advice of the Service; or

(v) reasonably relied on a qualified tax professional, and the tax professional failed to
make, or advise the taxpayer to make the election.

Section 301.9100-3(b)(3) provides that a taxpayer will not be considered to have acted
reasonably and in good faith if the taxpayer —

(i) seeks to alter a return position for which an accuracy-related penalty could be
imposed under § 6662 at the time the taxpayer requests relief and the new position
requires a regulatory election for which relief is requested;

(ii) was informed in all material respects of the required election and related tax
consequences, but chose not to file the election; or

(iii) uses hindsight in requesting relief. If specific facts have changed since the original
deadline that make the election advantageous to a taxpayer, the Service will not
ordinarily grant relief.

Section 301.9100-3(c)(1) provides that the Commissioner will grant a reasonable
extension of time only when the interests of the Government will not be prejudiced by
the granting of relief. The interests of the Government are prejudiced if granting relief
would result in a taxpayer having a lower tax liability in the aggregate for all taxable
PLR-139007-16                                5

years affected by the election than the taxpayer would have had if the election had been
timely made. The interests of the Government are ordinarily prejudiced if the taxable
year in which the regulatory election should have been made or any taxable years that
would have been affected by the election had it been timely made are closed by the
period of limitations on assessment under § 6501(a) before the taxpayer's receipt of a
ruling granting relief under this section.


                                        ANALYSIS

The election provided for in Rev. Pro. 2011-29 is a regulatory election, as defined under
§ 301.9100-1(b). The Commissioner has the authority under §§ 301.9100-1 and
301.9100-3 to grant an extension of time to file a late regulatory election.

The information and representations made by Taxpayer establish that Taxpayer acted
reasonably and in good faith. Taxpayer reasonably relied on Tax Return Preparer, a
qualified tax professional, to prepare its federal income tax return for Taxable Year. In
addition, Taxpayer is applying for relief before the missed election statement was
discovered by the Service. Taxpayer is not seeking to alter a return position for which
an accuracy-related penalty has been or could be imposed under § 6662 at the time
relief is requested. Furthermore, this is not a situation where Taxpayer affirmatively
chose not to make the election after having been informed in all material respects of the
required election and related tax consequences. Rather, Taxpayer intended to take
advantage of the safe harbor provisions in Rev. Proc. 2011-29 and filed its return for
Taxable Year reflecting those provisions but failed to include the required election
statement. Finally, Taxpayer is not using hindsight in requesting relief as no facts have
changed since the due date of the election that now make the election advantageous.

Further, based on the facts of the case provided, granting an extension will not
prejudice the interests of the Government. Taxpayer will not have a lower tax liability in
the aggregate for all taxable years affected by the election if given permission to make
the election at this time than Taxpayer would have had if the election had been timely
made. In addition, the taxable year in which the regulatory election should have been
made and any taxable years that would have been affected by the election had it been
timely made will not be closed by the period of limitations on assessment under
§ 6501(a) before Taxpayer's receipt of the ruling granting an extension of time to make
a late election.
                                          RULING

Based upon our analysis of the facts as represented, we conclude that Taxpayer acted
reasonably and in good faith, and granting relief will not prejudice the interests of the
government. Accordingly, the requirements of §§ 301.9100-1 and 301.9100-3 have
been met.
PLR-139007-16                                 6

Taxpayer is granted an extension of 60 days from the date of this ruling to file the
statement required by section 4.01(3) of Rev. Proc. 2011-29, stating that it is electing
the safe harbor for success-based fees; identifying the transaction and the proper year-
end date; and stating the success-based fee amounts that are deducted and
capitalized.

The rulings contained in this letter are based upon information and representations
submitted by Taxpayer and accompanied by a penalty of perjury statement executed by
appropriate parties. While this office has not verified any of the material submitted in
support of the request for rulings, it is subject to verification on examination.

Except as expressly provided herein, no opinion is expressed or implied concerning the
tax consequences of any aspect of any transaction or item discussed or referenced in
this letter, including whether Taxpayer properly included the correct costs as its
success-based fees subject to the election, or whether Taxpayer's transaction was
within the scope of Rev. Proc. 2011-29.

This ruling is directed only to the taxpayer requesting it. Section 6110(k)(3) provides that
it may not be used or cited as precedent.

A copy of this ruling should be attached to Taxpayer's federal income tax returns for the
tax years affected. Alternatively, taxpayers filing returns electronically may satisfy this
requirement by attaching a statement to their return that provides the date and control
number of this ruling.


In accordance with the power of attorney on file with this office, a copy of this letter is
being sent to your authorized representatives. We are also sending a copy of this letter
to the appropriate operating division director. Enclosed is a copy of the letter ruling
showing the deletions proposed to be made in the letter when it is disclosed under
§ 6110.

                                          Sincerely,



                                          Jamie J. Kim
                                          Assistant to the Branch Chief, Branch 3
                                          (Income Tax and Accounting)


Enclosure: Copy of the letter for 6110 purposes