9100 relief for a partnership to self-certify as a qualified opportunity fund after its accountant forgot to file Form 8996

Plain-English summary

A limited liability company taxed as a partnership was organized to invest in opportunity zone property and intended to self-certify as a Qualified Opportunity Fund (QOF). Self-certifying requires filing Form 8996 with the entity's tax return by the due date. The partnership's long-time accountant, who had prepared the owners' returns for 16 years and knew of the intent to self-certify, failed to attach Form 8996 to the timely-filed Form 1065, so the QOF election was missed. A new accounting firm later caught the error, and the partnership promptly asked the IRS for "9100 relief," a discretionary extension under Treas. Reg. § 301.9100-3 to make this regulatory election. The IRS granted it. A taxpayer is deemed to have acted reasonably and in good faith when it reasonably relied on a qualified tax professional who then failed to make the election, and granting relief here would not lower the taxpayer's aggregate tax or prejudice the government. The IRS gave the partnership 45 days from the date of the letter to file either an amended return or an Administrative Adjustment Request (AAR) with Form 8996 to make the election. The ruling decides only timeliness; it takes no position on whether the taxpayer actually qualifies as a QOF or whether any investment in it is a qualifying investment. This matters because the Opportunity Zone tax benefits depend on a valid, timely self-certification, and 9100 relief can rescue a fund whose late filing was caused by preparer error.

Ruling snapshot

• Question: Should the partnership get an extension of time under § 301.9100-3 to self-certify as a QOF on Form 8996 after its accountant failed to file the form with the return?
• Outcome: Approved (9100-3 relief granted on reasonable reliance on a tax professional; 45 days to file an amended return or AAR with Form 8996)
• Key authorities: IRC § 1400Z-2; Treas. Reg. §§ 1.1400Z2(d)-1, 301.9100-1, 301.9100-3

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 202152013 Third Party Communication: None
Release Date: 12/30/2021 Date of Communication: Not Applicable
Index Number: 1400Z.02-00
Person To Contact:
----------------------------------------- --------------------------,
-------------------------------- ID No. -----------------
--------------------------- Telephone Number:
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--------------------------------------------- Refer Reply To:
CC:ITA:B05
------------ PLR-108949-21
Date:
October 05, 2021

Legend

Taxpayer = -------------------------------------------------------------------
Companies = ----------------------------------
Members = ---------------------------------------------------------------------------------
------------------------
Year 1 = -------
State Z = --------------------
Accountant = ---------------------
Accounting Firm = --------------
Date 1 = -----------------
Date 2 = -------------------
Date 3 = ---------------------
Date 4 = --------------------------
Date 5 = -------------------

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

This ruling responds to the Taxpayer’s request dated Date 1. Specifically, the taxpayer
requests an extension of time under sections 301.9100-1 and 301.9100-3 of the Income
Tax Regulations to (1) make a timely election under section 1.1400Z2(a)-1(a)(2)(i) to be
certified as a qualified opportunity fund (QOF), as defined in section 1400Z-2(d) of the
Internal Revenue Code; and (2) for the Taxpayer to be treated as a QOF, effective as of
Date 2, as provided under section 1400Z-2(d) of the Code and section 1.1400Z2(d)-1(a)
of the Income Tax Regulations.

                                                FACTS

PLR-108949-21 2

The Taxpayer was organized as a limited liability company under the laws of State Z on
Date 3 and is classified as a partnership for federal income tax purposes. The Taxpayer
was organized for the purpose of investing in qualified opportunity zone property as
defined in section 1400Z-2(d)(2). The Taxpayer amended its operating agreement to
reflect its purpose of investing in qualified opportunity zone property on Date 2.

For Year 1, Accountant was hired to prepare and file the Taxpayer’s federal income tax
return. Accountant had a 16-year relationship with the Members of the Taxpayer and
the Companies, which are owned by the Members. Accountant had previously prepared
the Companies’ Federal and state income tax returns, as well as the Members’
individual income tax returns. Members of the Taxpayer intended to elect to self-certify
the Taxpayer as a QOF. According to the affidavits and information provided to us,
Accountant was aware of the Taxpayer’s intent to self-certify as a QOF. However,
according to the information submitted, Accountant failed to file the Form 8996,
Qualified Opportunity Fund, with the Taxpayer’s Form 1065 for Year 1. As a result,
Taxpayer failed to self-certify as a QOF.

On Date 4, Accounting Firm was hired to prepare federal income tax returns for the
Taxpayer and its Members. While reviewing the Taxpayer’s Form 1065 for Year 1, the
Accounting Firm discovered that the Form 8996 was not included with the return. On
Date 5, the Accounting Firm informed the Members of the error.

After Taxpayer became aware of the consequences of failing to timely file the Form
8996, this request for relief was promptly submitted under sections 301.9100-1 and
301.9100-3. Taxpayer represents that it relied on Accountant to timely file Form 8996.
Taxpayer further represents that granting of the relief under section 301.9100-3 will not
result in a lower tax liability for the years affected by the election.

                             LAW AND ANALYSIS

Section 1400Z-2(e)(4)(A) of the Internal Revenue Code directs the Secretary to
prescribe regulations for rules for the certification of QOFs. Section 1.1400Z2(d)-1(a)(2)
of the Income Tax Regulations provides that the rules for an entity to self-certify as a
QOF. Section 1.1400Z2(a)-1(a)(2)(i) provides that the entity electing to be certified as a
QOF must do so annually on a timely filed return in such form and manner as may be
prescribed by the Commissioner of Internal Revenue in the Internal Revenue Service
forms or instructions, or in publications or guidance published in the Internal Revenue
Bulletin.

To self-certify as a QOF, a taxpayer must file Form 8996, Qualified Opportunity Fund,
with its tax return for the year to which the certification applies. The Form 8996 must be
filed by the due date of the tax return (including extensions). The information provided
indicates that the taxpayer did not file its Form 8996 by the due date of its income tax
return (including extensions) due to Accountant’s failure to attach the Form 8996 to
Taxpayer’s timely filed return.
PLR-108949-21 3

Because section 1.1400Z2(d)-1(a)(2)(i) sets forth the manner and timing for an entity to
self-certify as a QOF, these elections are regulatory elections, as defined in section
301.9100-1(b).

Sections 301.9100-1 through 301.9100-3 provide the standards that the Commissioner
will use to determine whether to grant an extension of time to make a regulatory
election. Section 301.9100-3(a) provides that requests for extensions of time for
regulatory elections (other than automatic extensions covered in section 301.9100-2)
will be granted when the taxpayer provides evidence (including affidavits) to establish
that the taxpayer acted reasonably and in good faith and the grant of relief will not
prejudice the interests of the Government.

Under section 301.9100-3(b) a taxpayer is deemed to have acted reasonably and in
good faith if the taxpayer requests relief before the failure to make the regulatory
election is discovered by the Service, or reasonably relied on a qualified tax
professional, and the tax professional failed to make, or advise the taxpayer to make,
the election. However, a taxpayer is not considered to have reasonably relied on a
qualified tax professional if the taxpayer knew or should have known that the
professional was not competent to render advice on the regulatory election or was not
aware of all relevant facts.

In addition, section 301.9100-3(b)(3) provides that a taxpayer is deemed not to have
acted reasonably and in good faith if the taxpayer—

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

   (ii)    was fully informed in all material respects of the required election and
           related tax consequences but chose not to make 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 to make the regulatory election only when the interests of the
Government will not be prejudiced by the granting of relief.

Section 301.9100-3(c)(1)(i) provides that 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 years affected by the election than the taxpayer would have had if the
election had been timely made (taking into account the time value of money).
PLR-108949-21 4

Section 301.9100-3(c)(1)(ii) provides that the interests of the government are ordinarily
prejudiced if the taxable year in which the regulatory election should have been made or
any taxable year 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.

Based on the facts and information submitted and the representations made, we
conclude that the taxpayer has acted reasonably and in good faith, and that the granting
of relief would not prejudice the interests of the government. Accordingly, based solely
on the facts and information submitted, and the representations made in the ruling
request, we grant the taxpayer an extension of 45 days from the date of this letter ruling
to either file an amended return or an Administrative Adjustment Request (whichever is
appropriate) to make the election under section 1400Z-2 and section 1.1400Z2(d)-
1(a)(2)(i). The election is to be made on Form 8996.

This ruling is based upon facts and representations submitted by the taxpayer and
accompanied by a penalty of perjury statement executed by an appropriate party. This
office has not verified any of the material submitted in support of the request for a ruling.
However, as part of an examination process, the Service may verify the factual
information, representations, and other data submitted.

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. Specifically, we express no opinion, either express or implied, concerning
whether any investments made into the taxpayer are qualifying investments as defined
in section 1.1400Z2(a)–1(b)(34) or whether the taxpayer meets the requirements under
section 1400Z-2 and the regulations thereunder to be a QOF. We also express no
opinion whether any interest owned in any entity by the Taxpayer qualifies as qualified
opportunity zone property or whether such entity would be treated as a qualified
opportunity zone business. We express no opinion regarding the tax treatment of the
instant transaction under the provisions of any other sections of the Code or regulations
that may be applicable, or regarding the tax treatment of any conditions existing at the
time of, or effects resulting from, the instant transaction.

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.

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

A copy of this letter must be attached to any income tax return to which it is relevant.
Alternatively, taxpayers filing their returns electronically may satisfy this requirement by
attaching a statement to their return that provides the date and control number of the
letter ruling.
PLR-108949-21 5

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

                                     Sincerely,



                                     Erika Reigle
                                     Senior Technician Reviewer
                                     Office of Associate Chief Counsel
                                     (Income Tax and Accounting)

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