In PLR 201231003, the taxpayer requested an extension of time to file the Form 8939 to make a timely election to apply the provisions of § 1022 of the Code to determine the basis of property acquired from a decedent who died in 2010, pursuant to § 301.9100-3.

Notice 2011-66 stated that an extension of time to file a Form 8939 could be sought and granted under four limited circumstance, one of which was that the taxpayer met the requirements for an extension under § 301.9100-3. That Regulation requires that the taxpayer acted reasonably and in good faith, defining such to include when the taxpayer “(v) Reasonably relied on a qualified tax professional, including a tax professional employed by the taxpayer, and the tax professional failed to make, or advise the taxpayer to make, the election.”

The facts and representations submitted by the executrix of the decedent’s estate included that the executrix had retained a qualified tax professional to prepare the Form 8939. The taxpayer sought relief on January 27, 2012, ten days after the due date of the Form 8939. Notice 2011-66 also states that the amount of time that had elapsed prior to requesting relief will be taken into consideration in determining whether to grant relief under § 301.9100-3.

We now know that 10 days was a short enough period of time to obtain such relief as the IRS granted an extension of 120 days from 8/3/2012 to file the Form 8939.
After issuing PLR 201231003, the IRS issued three additional PLRs on September 21, 2012, PLR 201238011, PLR 201238012 and PLR 201238016, granting the taxpayers in each an extension of time under Reg. § 301.9100-3 to file Form 8939 to make the election under § 1022 of the Code and to allocate basis to property transferred as a result of a decedent’s death. Each of these three PLRs set out that the executor had engaged a tax professional to advise as to estate tax matters and the need to file a Form 8939. The § 9100 relief was sought by the taxpayers 28 days, 37 days and 43 days respectively after the 1/17/2012 due date of the Form 8939. In each PLR, the Service stated that the taxpayer met the requirements for relief and was given 120 days from the date of the PLR to file the Form 8939.