Private Letter Ruling   
Number: 202404001   
Internal Revenue Service   
October 31, 2023   
     
     
     
Internal Revenue Service   
Department of the Treasury   
Washington, DC 20224   
     
Number: 202404001   
Release Date: 1/26/2024   
Index Number: 1400Z.02-00   
Third Party Communication: None   
Date of Communication: Not Applicable   
Person To Contact:   
ID No.   
Telephone Number:   
Refer Reply To:   
CC:ITA:B04   
PLR-109552-23   
Date:  October 31, 2023   
     
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) be treated as a QOF, effective as of the month 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. 2023-1, 2023-1 I.R.B.1. A paper copy will not be mailed to Taxpayer.   
     
 FACTS    
     
Taxpayer was organized as a limited liability company under the laws of State Z on Date 1 and is treated as a partnership for federal income tax purposes. Taxpayer was formed to be a QOF effective on Date 1 for the purpose of investing in qualified opportunity zone property as defined in section 1400Z-2(d)(2). Taxpayer represents that it had no items of income, deduction, gain, or loss in Year 1.   
     
Taxpayer engaged the services of Firm in Year 2 to prepare the Year 1 federal income tax return and answer questions related to federal income tax matters. According to affidavits and information provided by Taxpayer, Taxpayer's partnership representative met with Accountant, a Certified Public Accountant and partner of Firm, to discuss the filing requirements for Taxpayer. Taxpayer's partnership representative provides that Accountant told the representative there were no filing requirements, as Taxpayer had no items of income, deduction, gain or loss.   
     
Accountant represents that Accountant did not advise Taxpayer's partnership representative that because there were contributions received by Taxpayer in the year of formation, Taxpayer was required to make an election to self-certify as a QOF by filing Form 8996 with its Year 1 federal income tax return, notwithstanding that the tax return would not reflect any items of income, deduction, gain, or loss. Taxpayer's partnership representative represents that Taxpayer relied on Accountant and Firm to notify it of the requirement to file the Year 1 federal income tax return and Form 8996.   
     
Accountant and Taxpayer became aware of the failure to file the Year 1 federal income tax return and Form 8996 after an investor in Taxpayer received notice from the Internal Revenue Service that the investor's investment was considered to be an ineligible investment.   
     
 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 Taxpayer intended to self-certify as a QOF as of the month Taxpayer was formed but did not file its Form 8996 by the due date of its income tax return.   
     
Treas.Reg. §§ 301.9100-1 through 301.9100-3 provide the standards 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 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--   
     
(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.   
     
 CONCLUSION    
     
Based on the facts and information submitted and the 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, we grant Taxpayer an extension of 60 days from the date of this letter to file a Form 8996 to make the election to self-certify as a QOF under section 1400Z-2 and section 1.1400Z2(d)-1(a)(2)(i). The election is to be made on a completed Form 8996 attached to the Taxpayer's tax return.   
     
This ruling is based upon facts and representations submitted by 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 information, representations, and other data submitted.   
     
This ruling addresses the granting of Treas. Reg. § 301.9100-3 relief as applied to Taxpayer's election to self-certify 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 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, Taxpayer's election.   
     
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.   
     
Sincerely,   
     
Stephen J. Toomey   
Senior Counsel, Branch 4   
Office of Associate Chief Counsel   
(Income Tax & Accounting)   
     
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