IRS Grants Extension to Make Portability Election

In PLR 201850015, the Decedent’s estate requested an extension of time pursuant to § 301.9100-3 of the Procedure and Administration Regulations to make a portability election to allow the Decedent’s surviving spouse to take into account the Decedent’s deceased spousal unused exclusion amount.

The Decedent’s estate represented that based on the value of the Decedent’s gross estate and taking into account any taxable gifts, the Decedent’s estate is not required under Internal Revenue Code § 6018(a) to file an estate tax return.

The due date of an estate tax return on which the portability election is made is nine months after the Decedent’s date of death, or the last day of the period covered by an extension if an extension of time for filing has been obtained.  An extension of time under § 301.9100-3 to make a portability election may be granted in the case of an estate that is not otherwise required to file an estate tax return.

Requests for relief under § 301.9100-3 will be granted when the taxpayer provides evidence to establish to the satisfaction of the Commissioner that the taxpayer acted reasonably and in good faith, and that granting relief will not prejudice the interests of the government.  Although this private letter ruling does not provide the reason for the Decedent’s estate’s failure to make the portability election, the ruling does provide that the requirements of § 301.9100-3 had been satisfied.  Therefore, the Commissioner granted the request for the extension to make the portability election.

Note that the Commissioner may grant an extension of time to make an election whose due date is prescribed by regulation, not statute.  Therefore, if it is later determined, based on the value of the gross estate and taking into account any taxable gifts, that the Decedent’s estate was required to file an estate tax return, then because that deadline is statutory, the Commissioner would be without authority to grant the extension to make the portability election, and the grant of the extension in this ruling would be null and void.

PLR 201850015. Release Date: 12/14/2018.

 

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