CCA 201302037

On Jan-11-2013 the IRS released Chief Counsel emailed advice 201302037 dated Nov-08-2012 in which it denied a 6166(a) election filed for a deficiency.

Apparent facts:

The estate tax return was timely filed. A §6166 election was not filed with the return, nor was a protective §6166 election made with the return. The tax shown due on the return was paid in full.

The IRS field examination resulted in a deficiency. No part of the deficiency was attributable to the closely held business included in the gross estate. The estate then filed a §6166(a) election based on the original closely held business value instead of a §6166(h) election attributable to the deficiency.

Counsel held that the estate could not make a §6166(h) election for any tax previously assessed on the original return; that a §6166(h) election applies only to the portion of a deficiency attributable to a closely held business; that the estate could not file a §6166(a) election after the return had been filed; that 9100 relief is not available for a §6166(a) election filed after the return has been filed; and, that a protective §6166(a) election could only have been effective for any originally assessed tax remaining unpaid at the time of filing (which in this case was zero).