Late relief lets an LLC self-certify as a Qualified Opportunity Fund after its advisor missed the extension deadline

Plain-English summary

To be a Qualified Opportunity Fund (QOF), which lets investors defer tax on capital gains reinvested in opportunity zones, an entity must self-certify each year by filing Form 8996 with a timely tax return (including extensions) under Section 1400Z-2. Here an LLC taxed as a partnership hired an advisor specifically to file its return, the Form 8996, and to file a Form 7004 to get an automatic filing extension. The advisor knew all of this but, through an administrative error, never filed the Form 7004, so the return and Form 8996 were late. The taxpayer asked the IRS for late-election relief under the Section 301.9100-3 regulations. Because reasonable reliance on a professional who failed to file counts as acting reasonably and in good faith, the IRS granted relief: the late Form 8996 will be treated as timely if filed within 45 days of the ruling. The IRS took no position on whether the entity actually qualifies as a QOF.

Ruling snapshot

• Question: May a taxpayer get an extension of time to file a late Form 8996 and self-certify as a Qualified Opportunity Fund after its advisor missed the extension deadline?
• Outcome: approved (late self-certification treated as timely if filed within 45 days)
• Key authorities: IRC § 1400Z-2; Treas. Reg. §§ 1.1400Z2(d)-1(a)(2)(i), 301.9100-1, 301.9100-3

Full text (IRS public release)

 Internal Revenue Service                                      Department of the Treasury
                                                               Washington, DC 20224

 Number: 202308007                                             Third Party Communication: None
 Release Date: 2/24/2023                                       Date of Communication: Not Applicable
 Index Number: 1400Z.02-00, 9100.00-00
                                                               Person To Contact:
 ------------------------------------                          --------------------------, ID No. ---------------
 -------------------------                                     Telephone Number:
 --------------------------------------                        --------------------
  -------------------------------                              Refer Reply To:
                                                               CC:ITA:B04
                                                               PLR-111594-22
                                                               Date:
                                                               November 29, 2022




                                                   LEGEND

 Taxpayer         =        --------------------------------------------------------------
 Advisor          =        -------------------------
 Year 1           =        -------
 Date 1           =        -----------------------
 Date 2           =        ---------------------
 Month 1          =        ------------------
 State Z          =        ------------



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

This letter responds to Taxpayer's request dated ------------------, seeking a private letter
ruling granting relief to make a late regulatory election pursuant to Treas. Reg. §§
301.9100-1 and 301.9100-3 of the Procedure and Administration Regulations.
Specifically, Taxpayer requests an extension of time to file Form 8996, Qualified
Opportunity Fund, to (1) self-certify as a qualified opportunity fund (QOF), as defined in
section 1400Z-2(d) of the Internal Revenue Code (Code) and (2) to be treated as a
QOF, effective as of the month the Taxpayer was formed, as provided under section
1400Z-2(d) and Treas. Reg. § 1.1400Z2(d)-1(a).

This letter ruling is being issued electronically in accordance with Rev. Proc. 2022-1,
2022-1 I.R.B. 1. A paper copy will not be mailed to Taxpayer.

                                                    FACTS

Based on the information provided, Taxpayer has represented that Taxpayer, a
partnership organized as a limited liability company under the laws of State Z, was
PLR-111594-22                                 2

formed to be a QOF on Date 1 for the purpose of investing in qualified opportunity zone
property as defined in section 1400Z-2(d)(2).

Taxpayer's representatives retained Advisor to prepare and timely file Taxpayer's
Federal income tax return for Year 1, as well as all related forms and elections to self-
certify Taxpayer as a QOF, and to treat Taxpayer as a QOF as of the month Taxpayer
was formed, Month 1.

According to the affidavits and representations provided to us, Advisor was aware of the
requirement to file Form 8996 with the Taxpayer's timely filed Federal income tax return
for Year 1 in order for the Taxpayer to self-certify QOF status and to be treated as a
QOF as of the month Taxpayer was formed. Advisor was retained by Taxpayer so that
Taxpayer could comply with the Form 8996 requirements and Advisor was expected to
file Form 7004, Application for Automatic Extension of Time To File Certain Business
Income Tax, Information, and Other Returns, in order to request an automatic extension
of time for Taxpayer's Federal income tax return for Year 1. However, due to an
administrative error, Advisor failed to file Taxpayer's Form 7004 for Year 1 by Date 2,
the default due date. Upon discovering that the election had not been timely filed,
Taxpayer enlisted Advisor to pursue relief under § 301.9100-3.

                                  LAW AND ANALYSIS

Section 1400Z-2(e)(4)(A) directs the Secretary to prescribe regulations for the
certification of QOFs. Treas. Reg. § 1.1400Z2(d)-1(a)(2)(i) provides that the self-
certification of a QOF must be timely-filed and effectuated annually 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 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 due to Advisor's failure
to file for an extension on Form 7004 by Date 2.

Treas. Reg. §§ 301.9100-1 through 301.9100-3 provide the standards that the Service
will use to determine whether to grant an extension of time to make a regulatory
election. Treas. Reg. § 301.9100-3(a) provides that requests for extensions of time for
regulatory elections (other than automatic changes covered in Treas. Reg. § 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 granting relief will not prejudice
the interests of the Government.

Treas. Reg. § 301.9100-3(b)(1) provides that a taxpayer is deemed to have acted
reasonably and in good faith if the taxpayer—
PLR-111594-22                                 3


       (i)     Requests relief before the failure to make the regulatory election is
               discovered by the Service;
       (ii)    Failed to make the election because of intervening events beyond the
               taxpayer's control;
       (iii)   Failed to make the election because, after exercising reasonable 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 professional
               failed to make, or advise the taxpayer to make, the election.

Under Treas. Reg. § 301.9100-3(b)(3), 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 fully informed 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.

Treas. Reg. § 301.9100-3(c) provides that the Service 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 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). Treas. Reg. § 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 section 6501(a) before the taxpayer's receipt of a
ruling granting relief under this section.

                                      CONCLUSION

Based on the facts submitted and representations made, we conclude that 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, the Taxpayer
has satisfied the requirements of the regulations for the granting of relief, and
Taxpayer's late-filed Form 8996 to make the election under § 1400Z-2 and §
1.1400Z2(d)-1(a)(2)(i), certifying the Taxpayer as a QOF as of the month the Taxpayer
PLR-111594-22                                  4

was formed, will be considered timely filed provided it is received by the appropriate
service center no later than 45 days from the date of this letter ruling.

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.

This ruling addresses the granting of Treas. Reg. § 301.9100-3 relief as applied to the
election to self-certify the Taxpayer as a QOF by filing Form 8996 for Year 1.
Specifically, we have no opinion, either express or implied, concerning whether any
investments made into Taxpayer are qualifying investments as defined in Treas. Reg. §
1.1400Z2(a)-1(b)(34) or whether Taxpayer meets the requirements under section
1400Z-2 and the regulations thereunder to be a QOF. 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 representatives.

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.


                                                   Sincerely,



                                                   Mon L. Lam
                                                   Senior Counsel, Branch 4
                                                   (Income Tax & Accounting)



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