Missed opportunity-fund election was accepted as timely

Plain-English summary

Members without tax experience organized a partnership-taxed limited liability company to serve as a qualified opportunity fund. They had discussed tax compliance with an accountant but misunderstood the due date for the company's first Form 1065 and accompanying Form 8996. The company requested relief and then filed both forms after the original deadline. The IRS found that the company acted reasonably and in good faith and that relief would not prejudice the government, so it treated Form 8996 as timely and recognized the self-certification as of the intended month. The taxpayer was instructed to send the ruling to the service center for association with its first-year return, and the IRS did not rule on substantive QOF qualification.

Ruling snapshot

• Question: Could the late Form 8996 be treated as timely and establish qualified-opportunity-fund status as of the intended month?
• Outcome: approved, Form 8996 treated as timely
• Key authorities: IRC § 1400Z-2; Treas. Reg. §§ 1.1400Z2(d)-1(a)(2)(i), 301.9100-1, and 301.9100-3

Full text (IRS public release)

 Internal Revenue Service                                      Department of the Treasury
                                                               Washington, DC 20224

 Number: 202412005                                             Third Party Communication: None
 Release Date: 3/22/2024                                       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-113488-23
                                                               Date:
                                                               December 20, 2023


 Taxpayer                =    ------------------------------------------------------------
 Members                 =    -------------------------------------------------------------------------------------
 Tax Accountant          =    --------------------------
 Date 1                  =    -----------------------
 Date 2                  =    ---------------------
 Date 3                  =    -------------------
 Date 4                  =    ----------------
 Date 5                  =    ----------------------
 Month 1                 =    ------------------
 Month 2                 =    --------------------
 Year 1                  =    -------
 State X                 =    -------------


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

This letter responds to Taxpayer's request, dated Date 4. Specifically, Taxpayer
requests relief, pursuant to sections 301.9100-1 and 301.9100-3 of the Procedure and
Administration Regulations, for its Form 8996, Qualified Opportunity Fund, filed on Date
5, to be treated as timely for purposes of the election for Taxpayer: (1) to 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
Taxpayer was formed, as provided under section 1400Z-2 of the Code and section
1.1400Z2(d)-1(a) of the Income Tax Regulations.

                                                     FACTS

According to the facts and representations provided, Taxpayer was organized by
Members as a limited liability company on Date 1 under the laws of State X and is
classified as a partnership for U.S. federal income tax purposes. As indicated in
Taxpayer’s company agreement executed on Date 1, Taxpayer was organized for the

PLR-113488-23                                2

purpose of being a qualified opportunity fund and to invest in qualified opportunity zone
property.

As Members lacked tax experience, in Month 1, before Taxpayer was organized, they
contacted Tax Accountant about performing tax compliance work for a QOF and to
discuss the various tax aspects of forming a QOF. Members agreed to contact Tax
Accountant again once the QOF was organized and indicated their intention to engage
Tax Accountant to prepare and file the QOF’s Federal income tax return for Year 1.
The filing deadline for the tax return was not discussed.

Once Taxpayer was formed, Members mistakenly believed that the filing deadline for
Taxpayer’s Year 1 Form 1065, U.S. Return of Partnership Income, and accompanying
Form 8996 was Date 3. As such, Members contacted Tax Accountant to prepare
Taxpayer’s Form 7004, Application for Automatic Extension of Time To File Certain
Business Income Tax, Information, and Other Returns, on Date 2, after the due date.
Taxpayer filed its Form 1065 and accompanying Form 8996 on Date 5 after submitting
this request for a private letter ruling.

                                  LAW AND ANALYSIS

Section 1400Z-2(e)(4)(A) directs the Secretary to prescribe regulations for the
certification of QOFs. Treas. Reg. section 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 IRS
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 Taxpayer did not file its Form 8996 by the due date of its income tax
return (including extensions) due to a mistake in belief regarding the filing deadline.

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

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 301.9100-3(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.

PLR-113488-23                                  3


Section 301.9100-3(b)(1) provides that a taxpayer is 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) 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.

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 section 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). 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 section 6501(a) before the taxpayer's receipt
of a ruling granting relief under this section.

PLR-113488-23                                 4

                                      CONCLUSION

Based on the facts and information submitted in connection with this request, we
conclude Taxpayer has acted reasonably and in good faith, and that the granting of
relief would not prejudice the interests of the Government.

Accordingly, Taxpayer has satisfied the requirements of the regulations for the granting
of relief, and Taxpayer’s Form 8996, filed on Date 5, shall be considered timely filed.
Accordingly, Taxpayer has thereby made the election under section 1400Z-2 and
section 1.1400Z2(d)-1(a)(2)(i) to self-certify as a QOF as of Month 2. Taxpayer should
submit a copy of this letter ruling to the IRS Service Center where Taxpayer files its
income tax returns, along with a cover letter requesting that the Service associate this
ruling with Taxpayer’s Year 1 federal income tax return.

This ruling is based upon facts and representations submitted by Taxpayer and
accompanied by penalty of perjury statements executed by the appropriate parties.
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. section 301.9100-3 relief as applied to
the election to self-certify Taxpayer as a QOF by filing Form 8996 for Year 1.

Except as expressly provided herein, no opinion is either expressed or implied
concerning the tax consequences of any aspect of any transaction or item discussed or
referenced in this letter. Specifically, we have no opinion, either express or implied,
concerning whether any investments made into Taxpayer are qualifying investments as
defined in Treas. Reg. section 1.1400Z2(a)-1(b)(34) or whether Taxpayer meets the
requirements and structure under section 1400Z-2 and the regulations thereunder to be
a QOF. In addition, we also express no opinion on whether any interest owned in any
entity by Taxpayer qualifies as qualified opportunity zone property, as defined in section
1400Z-2(d)(2), or whether such entity would be treated as a qualified opportunity zone
business, as defined in section 1400Z-2(d)(3). 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.
A copy of this letter must be attached to any 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.

This ruling is directed only to the taxpayer requesting it. Code section 6110(k)(3)
provides that it may not be used or cited as precedent. Enclosed is a copy of the letter
ruling showing the deletions proposed to be made when it is disclosed under Code
section 6110.

PLR-113488-23                               5


Pursuant to the Form 2848, Power of Attorney and Declaration of Representation, on
file, we are sending a copy of this letter to Taxpayer's authorized representatives.

This letter is being issued electronically in accordance with Rev. Proc. 2023-1, 2023-1
I.R.B. 1. A paper copy will not be mailed to the taxpayer.

                                                Sincerely,


                                                Stephen J. Toomey
                                                Senior Counsel, Branch 4
                                                Office of Associate Chief Counsel
                                                (Income Tax & Accounting)


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