Extension Granted to Elect Success-Based Fee Safe Harbor

Third Party Communication: None
Date of Communication: Not Applicable
Person To Contact: * * *, ID No. * * *
Telephone Number: * * *

Index Number: 9100.00-00
Release Date: 8/10/2018

Date: May 9, 2018

Refer Reply To: CC:ITA:B01 - PLR-102932-18

Attn: * * *

EIN: * * *

LEGEND:

Parent = * * *
Taxpayer = * * *
Date 1 = * * *
Date 2 = * * *
Date 3 = * * *
Corporation = * * *
Amount 1 = * * *
CPA = * * *

Dear * * *:

This is in response to a letter dated November 28, 2017, filed by Parent requesting a ruling on behalf of Taxpayer pursuant to sections 301.9100-1 and 301.9100-3 of the Procedure and Administration Regulations granting an extension of time to file an election statement required by section 4.01(3) of Rev. Proc. 2011-29, 2011-18 I.R.B. 746, 747, with respect to the taxable year ending Date 1.

FACTS

On Date 2, Taxpayer acquired the stock of Corporation per its agreement dated Date 3. Taxpayer incurred investment banking fees, which included success-based fees of Amount 1, paid upon closing the transaction during the taxable year. Taxpayer has represented that the transaction qualified as a covered transaction pursuant to section 1.263(a)-5(e)(3)(ii) of the Income Tax Regulations.

Consistent with the safe harbor election provided in Rev. Proc. 2011-29, 201-18 I.R.B. at 746-47, Taxpayer capitalized 30% of the success-based fees and deducted the remaining 70% on its tax return for the taxable year. Taxpayer inadvertently failed to attach the statement required by section 4.01(3) of Rev. Proc. 2011-29, 2011-18 I.R.B. at 747, to elect to use the safe harbor method of allocating success-based fees to its original federal tax return for the taxable year.

Taxpayer retained CPA to prepare and file Taxpayer's Date 1 federal tax return. Taxpayer represents that it believed CPA was competent to render advice on the election statement and information that should be included on its federal tax return. Taxpayer relied on CPA as a qualified tax professional to prepare and file Taxpayer's federal tax return. CPA inadvertently failed to attach the election statement to Taxpayer's federal tax return. CPA discovered that it failed to attach the election statement to Taxpayer's tax return when CPA reviewed materials provided by an international CPA firm that provided detailed guidance on the safe harbor election. CPA informed Taxpayer of the inadvertent failure.

Taxpayer has prepared and submitted an affidavit regarding its failure to attach the required election statement to its return. CPA has prepared and submitted an affidavit regarding its failure to attach the required election statement to Taxpayer's return.

LAW

Section 263(a)(1) of the Internal Revenue Code provides generally that no deduction shall be allowed for any amount paid in exchange for property having a useful life extending beyond the end of the taxable year. See also section 1.263(a)-2(a). No deduction is allowed for an amount paid to acquire or create an intangible, which includes an ownership interest in a corporation or other entity. Section 1.263(a)-1(d)(3); see also sections 1.263(a)-4(c)(1)(i); 1.263(a)-4(d)(2)(i)(A). Costs incurred in the process of acquisition or reorganization of a business entity that produce significant long-term benefits must be capitalized. Indopco v. Commissioner, 503 U.S. 79, 89-90 (1992); section 1.263(a)-5(a) (providing that taxpayers must capitalize amounts paid to facilitate certain transactions set forth in that section).

Section 1.263(a)-5(b)(1) provides that an amount is paid to facilitate a transaction if the amount is paid in 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(f) sets forth the rule governing success-based fees. It provides that an amount paid that is contingent on the successful closing of a transaction described in section 1.263(a)-5(a) is treated as 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.

A taxpayer's method for determining the portion of a success-based fee that facilitates a transaction and the portion that does not facilitate the transaction is a method of accounting under section 446.

Rev. Proc. 2011-29, 2011-18 I.R.B. 746, provides a safe harbor election for allocating success-based fees paid in business acquisitions or reorganizations described in section 1.263(a)-5(e)(3). Pursuant to section 4.01 of Rev. Proc. 2011-29, 2011-18 I.R.B. at 747, the Service will not challenge a taxpayer's allocation of a success-based fee between activities that facilitate a transaction described in section 1.263(a)-5(e)(3) and activities that do not facilitate the transaction if the taxpayer: 1) treats 70% of the amount of the success-based fee as an amount that does not facilitate the transaction; 2) capitalizes the remaining 30% as an amount that does facilitate the transaction; and 3) attaches 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.

Section 301.9100-1 sets forth the standards the Commissioner will use to determine whether to grant an extension of time to make a regulatory election. Section 301.9100-1(b) provides that a regulatory election is 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. Pursuant to section 301.9100-1(c), the Commissioner has discretion to grant a reasonable extension of time under the rules set forth in sections 301.9100-2 and 301.9100-3 to make a regulatory election.

Section 301.9100-2 sets forth the rules applicable to automatic 12-month extensions of time to make certain regulatory elections. Section 301.9100-3 sets forth the rules applicable to requests for extensions of time for regulatory elections that do not meet the requirements of section 301.9100-2. Requests for relief pursuant to section 301.9100-3 will be granted when the taxpayer provides evidence (including affidavits described in section 301.9100-3(e)) that establishes that the taxpayer acted reasonably and in good faith, and that the grant of relief will not prejudice the interests of the government.

Section 301.9100-3(b)(1) provides that a taxpayer is deemed to have acted reasonably and in good faith if the taxpayer:

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

Section 301.9100-3(c)(1) provides that an extension of time to make a regulatory election will be granted only when the interests of the government are not 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). Section 301.9100-3(c)(1)(i).

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 under section 6501(a) before the taxpayer's receipt of a ruling granting relief under this section. Section 301.9100-3(c)(1)(ii).

Section 301.9100-3(c)(2) provides special rules for accounting method regulatory elections. The interests of the government are deemed to be prejudiced except in unusual and compelling circumstances if the accounting method regulatory election for which relief is requested:

ANALYSIS

Taxpayer's election is a regulatory election, as defined in section 301.9100-1(b), because the due date of the election is prescribed in the Income Tax Regulations under section 1.263(a)-5(f). The Commissioner has the authority under sections 301.9100-1 and 301.9100-3 to grant an extension of time to file a late regulatory election.

The information provided and representations made by Taxpayer establish that Taxpayer acted reasonably and in good faith. Taxpayer requested relief before the failure to make the regulatory election 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 section 6662 at the time relief is requested. Taxpayer did not affirmatively choose not to make the election after having been informed in all material respects of the required election and related tax consequences. Rather, Taxpayer relied on CPA to advise it as to any relevant elections, which CPA failed to do with respect to this election. Taxpayer is not using hindsight in requesting relief.

Further, based on the information provided and representations made by Taxpayer, 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 to which the election applies at this time than Taxpayer would have had if the election had been timely made. In addition, the taxable year in which the regulatory elections 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 section 6501(a) before Taxpayer's receipt of the ruling granting an extension of time to make a late election.

CONCLUSION

Based solely on the information provided and representations made, we conclude that Taxpayer acted reasonably and in good faith, and granting relief will not prejudice the interests of the government. Therefore, the requirements of sections 301.9100-1 and 301.9100-3 have been met.

Taxpayer is granted an extension of 60 days from the date of this ruling to file its mandatory statement as required by section 4.01 of Rev. Proc. 2011-29, 2011-18 I.R.B. at 747, stating that it is electing the safe harbor for allocating success-based fees, identifying the transaction, and stating the success-based fee amounts that are deducted and capitalized.

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. In particular, no opinion is expressed as to whether Taxpayer properly included the correct costs as its success-based fees subject to the retroactive election, or whether Taxpayer's transactions were within the scope of Rev. Proc. 2011-29, 2011-18 I.R.B. 746.

This ruling is directed only to the taxpayer requesting it. Pursuant to section 6110(k)(3), this ruling may not be used or cited as precedent.

A copy of this letter must be attached to any income tax return to which it is relevant. Alternatively, a taxpayer filing its return electronically may satisfy this requirement by attaching a statement to its return that provides the date and control number of the letter ruling.

The rulings contained in this letter are based on information and representations submitted by 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,

Ronald J. Goldstein
Assistant to the Branch Chief, Branch 1
(Income Tax & Accounting)