What section 9100 covers
Treas. Reg. 301.9100-1(b) defines a regulatory election as one “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.” A statutory election is one whose due date is set by the Code. “Election” includes applications for relief and requests to adopt, change or retain an accounting method or period, but not an extension of time to file a return under section 6081.
Under 301.9100-1(c), the Commissioner may grant a reasonable extension for regulatory elections, and for statutory elections only up to 6 months (except for a taxpayer who is abroad), under all subtitles except E, G, H and I. Two limits are easy to miss. First, 301.9100-1(a) says “the granting of an extension of time is not a determination that the taxpayer is otherwise eligible to make the election.” Second, 301.9100-1(d) bars an extension where a statute, regulation or published guidance provides alternative relief, which is why late S corporation and entity classification elections that fit their own revenue procedures go there instead.
Automatic extensions under 301.9100-2
| Extension | Applies to | Condition |
|---|---|---|
| 12 months from the due date of the election | Nine listed regulatory elections, including the section 444 fiscal year election, the LIFO election under section 472, the section 754 basis adjustment election, the 15-month rule for exemption applications under sections 505 and 508, homeowners association status under section 528, and special use valuation under section 2032A where no exam has started | Corrective action within the 12 months. Available whether or not the return for the year was timely filed. If the election is due with the return including extensions and an extension was obtained, the 12 months run from the extended due date. |
| 6 months from the due date of the return, excluding extensions | Regulatory or statutory elections due with the return or the return including extensions | The return for the year was timely filed, and corrective action is taken within the 6 months. Not available for elections due by the return due date excluding extensions. |
Corrective action means filing the election the way the statute or guidance requires. For elections made with a return, it includes filing an original or amended return for the election year with the form or statement attached. Everyone whose liability is affected must file consistently, or the IRS may invalidate the election (301.9100-2(c)).
The filing must say “FILED PURSUANT TO § 301.9100-2” at the top and go to the address where the election would have gone if filed on time (301.9100-2(d)). No ruling is involved, so no fee applies. Rev. Proc. 2026-1 confirms: “An election made pursuant to § 301.9100-2 for an automatic extension of time is not a letter ruling request and does not require payment of any user fee.”
Example 2 in the regulation shows the 6-month rule: a taxpayer who files a timely return on its original due date without an election due with the return may make it by filing an amended return with the form within 6 months of that due date.
The 301.9100-3 standards
Everything outside 301.9100-2 goes through Treas. Reg. 301.9100-3, which states the test in one sentence: “Requests for relief subject to this section will be granted when the taxpayer provides the evidence (including affidavits described in paragraph (e) of this section) to establish to the satisfaction of the Commissioner that the taxpayer acted reasonably and in good faith, and the grant of relief will not prejudice the interests of the Government.”
Paragraph (b)(1) lists five situations in which the taxpayer is deemed to have acted reasonably and in good faith. The taxpayer:
- requested relief before the IRS discovered the failure;
- failed to elect because of intervening events beyond its control;
- failed to elect because, after reasonable diligence (considering its experience and the complexity of the issue), it was unaware the election was necessary;
- reasonably relied on written advice of the IRS; or
- reasonably relied on a qualified tax professional, including one it employs, who failed to make or advise it to make the election.
Reliance has limits. Under (b)(2), “a taxpayer will not be considered to have reasonably relied on a qualified tax professional if the taxpayer knew or should have known that the professional was not” competent to advise on the election or aware of all relevant facts.
Paragraph (b)(3) lists three situations in which the taxpayer is deemed not to have acted reasonably and in good faith, overriding the five above: it seeks to change a return position for which an accuracy-related penalty under section 6662 has been or could be imposed and the new position needs the election; it was informed in all material respects of the election and its consequences but chose not to file; or it uses hindsight in requesting relief. On hindsight, the regulation says that if facts have changed since the due date in a way that makes the election advantageous, the IRS will not ordinarily grant relief without strong proof that hindsight was not involved. See the accuracy-related penalty page for the 6662 side of that test.
Prejudice to the Government
Paragraph (c) defines prejudice two ways. Relief is prejudicial if it would leave the taxpayer (or all affected taxpayers together) with a lower total tax liability for all affected years than a timely election would have, taking the time value of money into account. And relief is ordinarily prejudicial if the election year or any affected year is closed by the assessment statute before the taxpayer receives the ruling. The IRS may condition relief on a statement from an independent auditor certifying no prejudice.
Special rules make accounting elections harder. Accounting method elections are deemed prejudicial, except in unusual and compelling circumstances, if they require advance consent, require a section 481(a) adjustment, would let the taxpayer leave an impermissible method that is under consideration in an exam, Appeals or court on better terms, or carry better terms if made by a certain date. Accounting period elections (other than section 444) are deemed prejudicial if the request is filed “more than 90 days after the due date for filing the Form 1128” (301.9100-3(c)(3)). The Form 1128 instructions repeat this; see changing a tax year.
Building a 301.9100-3 request
A 301.9100-3 request is a letter ruling request and follows the format in section 7 of Rev. Proc. 2026-1. Paragraph (e) of the regulation adds the content that makes or breaks it:
| Item | Requirement |
|---|---|
| Taxpayer affidavit | A detailed affidavit from the taxpayer (or the person acting for it on tax matters) describing the events that led to the failure and to its discovery. If a professional was relied on, it describes the engagement, the professional's responsibilities and the extent of reliance. Signed with the penalties of perjury declaration in (e)(2), by someone with personal knowledge. |
| Third-party affidavits | From the return preparer, anyone who made a substantial contribution to the return, and any accountant or attorney who advised on the election. Each gives name, current address and TIN, describes the engagement and advice, and carries the (e)(3) declaration. |
| Exam status | Whether any affected return is under examination, in Appeals or in court, with a duty to notify the IRS office if an exam starts while the request is pending. |
| Dates | When the election was due and when it was actually filed. |
| Documents | Copies of any documents referring to the election, and on request the returns for affected years and other affected taxpayers' returns. |
| User fee | Under Rev. Proc. 2026-1, Appendix A: $14,500 for requests received in 2026, or $3,450 (gross income under $400,000) or $9,775 (gross income $400,000 to under $10 million) with the required certification. Extensions to file Form 1128, Form 8716 or Part II of Form 2553 carry a $6,100 fee, and extensions to file Form 3115 carry $13,900. |
The fee covers the extension only. Rev. Proc. 2026-1 says a taxpayer who receives 301.9100-3 relief “will be charged a separate user fee for the letter ruling request on the underlying issue” when the underlying issue itself needs a ruling, such as a nonautomatic accounting change.
The statute keeps running. 301.9100-3(d)(2) is explicit: “A request for relief under this section does not suspend the period of limitations on assessment under section 6501(a).” Rev. Proc. 2026-1, section 5.03(2), says the national office ordinarily will not issue a ruling if the assessment statute for the election year or any affected year will expire before the ruling is received, unless the taxpayer consents to extend it under section 6501(c)(4). See Form 872 statute extensions and the assessment statute page. A taxpayer that receives relief also waives objections to a second examination under section 7605(b) for the issue and correlative adjustments (301.9100-3(d)(1)).
Treas. Reg. 301.9100-3(e)(3) requires affidavits from the return preparer and any advisor on the election, not just the taxpayer. When the professional who missed the election is the one preparing the request, the engagement description in that professional's own affidavit is part of the file the national office will read.
Requests during an exam or Appeals
Rev. Proc. 2026-1, section 5.03, says the associate office will consider a 301.9100-3 request even after the return is filed, an exam has begun, the case is in Appeals or court, or the tax has been assessed. The associate office notifies the examiner, Appeals officer or counsel, and the procedure states: “The examination agent, Appeals officer, or attorney is not authorized to deny consideration of a § 301.9100 request.” The ruling goes to the taxpayer with a copy to the office that has the case. Relief is still subject to the hindsight and accuracy-penalty rules above, which tend to bite hardest when the request follows an exam adjustment. See how IRS examinations work.
When another procedure applies instead
| Missed election | Use first | Fee |
|---|---|---|
| Form 2553 S corporation election | Rev. Proc. 2013-30 | None |
| QSub, QSST or ESBT election | Rev. Proc. 2013-30, Sections 6 and 7 | None |
| Stand-alone Form 8832 | Rev. Proc. 2009-41 | None |
| Election due with a timely filed return | Automatic 6-month extension, 301.9100-2(b) | None |
| Section 444 or section 754 election | Automatic 12-month extension, 301.9100-2(a) | None |
| Form 1128 filed late | 301.9100-3 letter ruling; within 90 days is the practical window | $6,100 (2026) |
Each of these procedures is narrower than 301.9100-3, and each has its own conditions. A request that fails one of them can usually still go to the national office as a 301.9100-3 ruling, as Rev. Proc. 2009-41 and Rev. Proc. 2013-30 both say.
Questions practitioners ask
Is 9100 relief available for an election whose deadline is in the Code itself?
Only through the automatic 6-month extension in 301.9100-2(b), and only for elections due with a timely filed return. Under 301.9100-1(c), extensions for statutory elections are limited to 6 months except for taxpayers abroad. Some statutes, like IRC 1362(b)(5) for S elections, have their own late-election authority.
Does the IRS discovering the problem first end the request?
No, but it removes the first of the five deemed good faith situations in 301.9100-3(b)(1). The taxpayer then needs another, such as reliance on a qualified professional.
Can one ruling cover several related entities?
Rev. Proc. 2026-1 generally issues a single letter for related 301.9100 rulings and provides a reduced fee for substantially identical requests by entities with a common parent or sponsor, for example multiple late entity classification elections.
Is a 301.9100-3 ruling made public?
The Form 1128 instructions state that a 301.9100-3 extension request for a late Form 1128 is a ruling request and is subject to public inspection under section 6110.
What does the automatic extension filing look like?
The election itself, prepared as it should have been, with “FILED PURSUANT TO § 301.9100-2” at the top, sent where the timely election would have gone, and, for elections made on a return, an original or amended return for the election year.