Rp 2009-16

support of C’s tax preparation business, C makes a
grant request to a charitable foundation to fund C’s
operations providing free tax preparation services to
low- and moderate-income families. In support of C’s
request, C includes anonymous statistical data showing that, in 2008, C provided services to 500 taxpayers, that 95% of the taxpayer population served by C
received the Earned Income Tax Credit (EITC), and
that the average amount of the EITC received was
$3,300. C may disclose this information because it
contains an anonymous statistical compilation, is in
direct support of their tax return preparation services,
and is consistent with this interim guidance.
Example 4. Preparer D is a tax return preparer
as defined by § 301.7216–1(b)(2)(i)(A). In December 2007, D produced an anonymous statistical compilation of tax return information obtained during the
2007 filing season. In 2009, D discloses portions of
the anonymous statistical compilation in connection
with the marketing of its financial advisory and asset
planning services. D is required to receive taxpayer
consent under § 301.7216–3 before disclosing the tax
return information contained in the anonymous statistical compilation because the disclosure is not being
made in support of the tax return preparation business.

EFFECTIVE DATE
This interim guidance applies to disclosures of anonymous statistical compilations of tax return information occurring
on or after February 9, 2009. This interim
guidance expires on the earlier of the date
that it is superseded or December 31, 2009.
REQUESTS FOR COMMENTS
Interested parties are invited to submit
comments on this notice and modifications to § 301.7216–2(o) by May 10, 2009.
Comments should be submitted to: Internal Revenue Service, CC:PA:LPD:PR
(Notice 2009–13), Room 5203, P.O. Box
7604, Ben Franklin Station, Washington, DC 20224. Alternatively, comments
may be hand-delivered Monday through
Friday between the hours of 8:00 a.m.
to 4:00 p.m. to: CC:PA:LPD:PR (Notice 2009–13), Courier’s Desk, Internal Revenue Service, 1111 Constitution
Avenue, N.W., Washington, DC. Comments may also be submitted electronically via the following e-mail address:
Notice.Comments@irscounsel.treas.gov.
Please include Notice 2009–13 in the
subject line of any electronic submission.
DRAFTING INFORMATION
The principal author of this notice is
Molly K. Donnelly, Office of the Associate

2009–6 I.R.B.

Chief Counsel (Procedure and Administration). For further information regarding
this notice, contact Molly K. Donnelly at
(202) 622–4940 (not a toll-free call).

Credit Rates on Tax Credit
Bonds
Notice 2009–15
SECTION 1. Purpose
This notice provides guidance regarding how the Treasury Department and the
Internal Revenue Service (IRS) will determine and announce credit rates on certain
tax credit bonds described in this notice.
SECTION 2. Background
Section 54A provides for the issuance
of certain qualified tax credit bonds in
which investors are eligible to receive
Federal tax credits in lieu of the payment
of all or a portion of the interest on the tax
credit bonds. Qualified tax credit bonds
under § 54A include qualified forestry
conservation bonds, new clean renewable
energy bonds, qualified energy conservation bonds, and qualified zone academy
bonds. Section 54A(b)(3) provides that
the applicable credit rate for a qualified tax
credit bond is the rate which the Secretary
of the Treasury estimates will permit the
issuance of the qualified tax credit bond
with a specified maturity or redemption
date without discount and without interest cost to the qualified issuer. Section
54A(b)(3) further provides that the applicable credit rate with respect to any
qualified tax credit bond shall be determined as of the first day on which there is
a binding written contract for the sale or
exchange of the bond. In addition, §§ 54
and 1400N(l) provide for the issuance of
certain tax credit bonds known as clean
renewable energy bonds and Midwestern tax credit bonds, respectively, which
have similar credit rate-setting procedures.
Unless otherwise provided, references in
this notice to tax credit bonds include
qualified tax credit bonds under § 54A,
clean renewable energy bonds under § 54,
and Midwestern tax credit bonds under
§ 1400N(l).

449

SECTION 3. Credit Rates
Pending further notice in a manner
described in this notice, the Treasury Department will determine and announce
credit rates for tax credit bonds daily for
purposes of §§ 54, 54A, 1400N(l), and
other similar provisions, based on its estimate of the yields on outstanding bonds
from market sectors selected by the Treasury Department in its discretion that have
an investment grade rating of between
A and BBB for bonds of a similar maturity for the business day immediately
preceding the sale date of the tax credit
bonds. The applicable credit rate for a tax
credit bond on its sale date is the credit
rate published for that date by the Bureau of Public Debt on its Internet site for
State and Local Government Series securities at: https://www.treasurydirect.gov.
The Treasury Department and the IRS
will set forth future refinements in the
manner for determining credit rates on
tax credit bonds in regulations, public
notices, forms, instructions, or public
notice directly on the above-referenced
Internet site on which credit rates on tax
credit bonds presently are published.
SECTION 4. Effect on Other
Documents
Notice 99–35, 1999–2 C.B. 26 (July
12, 1999) is obsoleted. Notice 2007–26,
2007–14 C.B. 870 (April 2, 2007) is modified.
SECTION 5. Effective Date.
This notice is effective as of January 22,
2009.
26 CFR 1.168(k)–1: Additional first year depreciation deduction.
(Also: §§ 38, 41, 52, 53, 168, 383, 702, 1374,1502,
6031, 6401.)

Rev. Proc. 2009–16
SECTION 1. PURPOSE
This revenue procedure supplements
Rev. Proc. 2008–65, 2008–44 I.R.B.
1082, to provide additional guidance under
§ 3081 of the Housing and Economic Recovery Act of 2008, Pub. L. No. 110–289,

February 9, 2009

122 Stat. 2654 (July 30, 2008) (Housing
Act). Section 3081(a) of the Housing Act
amends § 168(k) of the Internal Revenue
Code by adding § 168(k)(4), allowing corporations to elect not to claim the 50-percent additional first year depreciation for
certain new property acquired after March
31, 2008, and placed in service generally
before January 1, 2009, and instead to
increase their business credit limitation
under § 38(c) and alternative minimum
tax (AMT) credit limitation under § 53(c).
Section 3081(b) of the Housing Act allows certain automotive partnerships to
elect to be treated as making a refundable
deemed payment of income tax in a certain
amount. Rev. Proc. 2008–65 provides
guidance regarding the effects of making the § 168(k)(4) election, the property
eligible for this election, and the computation of the amount by which the business
credit limitation and AMT credit limitation may be increased if the § 168(k)(4)
election is made. This revenue procedure
provides guidance regarding the time and
manner for making the § 168(k)(4) election, the allocation of the credit limitation
increases allowed by this election among
members of a controlled group, the effect
of the election on partnerships with corporate partners that make the § 168(k)(4)
election, the application of § 168(k)(4)
to S corporations, and the election under
§ 3081(b) of the Housing Act by certain
automotive partnerships.
SECTION 2. BACKGROUND
.01 Section 168(k), amended by § 103
of the Economic Stimulus Act of 2008,
Pub. L. No. 110–185, 122 Stat. 613
(February 13, 2008) (Stimulus Act), allows a 50-percent additional first year depreciation deduction (Stimulus additional
first year depreciation deduction) for certain new property acquired by a taxpayer
after 2007 and placed in service by the taxpayer before 2009 (before 2010 in the case
of property described in § 168(k)(2)(B) or
(C)).
.02 Section 3081(a) of the Housing
Act added § 168(k)(4) to the Code. If a
corporation elects to apply § 168(k)(4),
§ 168(k)(4)(A) provides that, for the corporation’s first taxable year ending after
March 31, 2008, and for any subsequent
taxable year, the corporation forgoes the
Stimulus additional first year deprecia-

February 9, 2009

tion deduction allowable under § 168(k)
for eligible qualified property placed in
service by the taxpayer and increases the
limitations described in § 38(c) (relating
to the general business credit) and § 53(c)
(relating to the AMT credit). As a result,
the corporation will be able to claim unused credits from taxable years beginning
before January 1, 2006, that are allocable
to research expenditures or AMT liabilities. Rev. Proc. 2008–65 clarifies which
depreciable property is eligible qualified
property for purposes of the § 168(k)(4)
election and clarifies the effects of making
the § 168(k)(4) election.
.03 In general, the amount by which
the § 168(k)(4) election increases the business credit limitation under § 38(c) and
the AMT credit limitation under § 53(c)
is the bonus depreciation amount. See
§ 168(k)(4)(A)(iii). Except as provided
below, the bonus depreciation amount generally is equal to 20 percent of the excess of
the aggregate amount of depreciation that
would be allowable for eligible qualified
property if the Stimulus additional first
year depreciation deduction applied to all
such property, over the aggregate amount
of depreciation that would be allowable
for all such property if the Stimulus additional first year depreciation deduction did
not apply. See § 168(k)(4)(C)(i). However, the bonus depreciation amount for
any taxable year must not exceed the maximum increase amount reduced by the
sum of the bonus depreciation amounts
determined for all prior taxable years. See
§ 168(k)(4)(C)(ii). In general, the maximum increase amount is equal to the lesser
of $30 million, or 6 percent of the sum
of the unexpired and unused pre–2006
business credit carryforwards allocable to
the research credit and AMT credit carryforwards to the current taxable year. See
§ 168(k)(4)(C)(iii). For any taxable year,
the bonus depreciation amount allocated
to either the business credit limitation
or AMT credit limitation must not exceed the amount of unexpired and unused
pre–2006 business credit carryforwards
allocable to the research credit or AMT
credit carryforwards less bonus depreciation amounts allocated to each limitation,
respectively, for all prior taxable years.
See § 168(k)(4)(E)(ii). To the extent that
a taxpayer is allowed the business credit
or AMT credit in an amount allocable to
the aggregate increases in the business

450

credit limitation or AMT credit limitation
that result from the § 168(k)(4) election,
such amount(s) are treated as overpayments within the meaning of § 6401(b)
that are refundable to the taxpayer. See
§ 168(k)(4)(F).
.04 Rev. Proc. 2008–65 states that the
Internal Revenue Service (IRS) and Treasury Department intend to publish separate guidance on the time and manner for
making the § 168(k)(4) election and for
specifying the allocation of the bonus depreciation amount to increase the business
and AMT credit limitations under, respectively, §§ 38(c) and 53(c). This revenue
procedure provides the time and manner
for making the § 168(k)(4) election (see
section 3 of this revenue procedure) and
provides guidance on making and reporting the allocation of the bonus depreciation
amount to increase the business and AMT
credit limitations (see section 4 of this revenue procedure).
.05 Section 168(k)(4)(C)(iv) provides
that all corporations that are treated as
a single employer under § 52(a) (generally any controlled group of corporations within the meaning of § 1563(a),
determined by substituting “more than
50 percent” for “more than 80 percent”
each place it appears in § 1563(a)(1))
(hereinafter such group of corporations is
referred to as a “controlled group”) are
treated as one taxpayer for purposes of
§ 168(k)(4) and as having elected to apply § 168(k)(4) if any member of such
controlled group so elects. This revenue
procedure provides guidance regarding
the allocation of the bonus depreciation
amount to increase the business and AMT
credit limitations among members of a
controlled group (see section 4.02 of this
revenue procedure).
.06 Under § 168(k)(4)(G)(ii), if a corporation that makes the § 168(k)(4) election is a partner in a partnership, the electing corporate partner’s distributive share
of partnership items under § 702 for any eligible qualified property placed in service
by the partnership must be computed by
using the straight line method and without
claiming the Stimulus additional first year
depreciation deduction. This revenue procedure provides guidance regarding partnerships with corporate partners that make
the § 168(k)(4) election (see section 5 of
this revenue procedure).

2009–6 I.R.B.

.07 Except as provided in § 3081(b) of
the Housing Act, only a corporation may
elect to apply § 168(k)(4). Some S corporations and their shareholders are uncertain about whether § 168(k)(4) applies to
them. This revenue procedure clarifies the
application of § 168(k)(4) to S corporations and their shareholders (see section 6
of this revenue procedure).
.08 Section 3081(b)(1) of the Housing
Act provides that an applicable partnership
may elect to be treated as making a refundable deemed payment of income tax in a
certain amount. This revenue procedure
provides guidance regarding this election
(see section 7 of this revenue procedure).
.09 Section 168(k)(4) does not modify
the rules under §§ 383 and 1502. Section 383 limitations do not affect the credit
amounts that a taxpayer takes into consideration in calculating its maximum increase amount under section 5.04 of Rev.
Proc. 2008–65. However, the increases in
the business credit limitation under § 38(c)
and AMT credit limitation under § 53(c)
that result from a § 168(k)(4) election do
not allow a taxpayer to utilize credit carryforwards that are otherwise limited by
§ 383.
SECTION 3. TIME AND MANNER
FOR MAKING THE § 168(k)(4)
ELECTION
.01 In General. Except as provided in
sections 3.02 and 3.03 of this revenue procedure, a corporate taxpayer must make
the § 168(k)(4) election by the due date (including extensions) of the federal income
tax return for the taxpayer’s first taxable
year ending after March 31, 2008. Even if
the taxpayer does not place in service any
eligible qualified property during its first
taxable year ending after March 31, 2008,
the taxpayer must make the § 168(k)(4)
election for that taxable year if the taxpayer wishes to apply the election to eligible qualified property placed in service
in subsequent taxable years. If a taxpayer
is not a member of a controlled group, the
taxpayer makes the § 168(k)(4) election
in the manner provided in either sections
3.02, 3.03, or 3.04 of this revenue procedure. If a taxpayer is a member of a
controlled group, the taxpayer makes the
§ 168(k)(4) election in the manner provided in section 3.05 of this revenue procedure. Failure to comply with any of the

2009–6 I.R.B.

reporting or notification requirements provided by this section 3 will nullify a taxpayer’s attempted § 168(k)(4) election.
.02 Taxpayer’s First Taxable Year Ending After March 31, 2008, Ends Before December 31, 2008.
(1) In general. Except as provided in
section 3.03 of this revenue procedure, if
a taxpayer’s first taxable year ending after
March 31, 2008, ends before December
31, 2008, and:
(a) If the taxpayer has not filed its original federal income tax return for such taxable year on or before March 11, 2009, the
taxpayer makes the § 168(k)(4) election:
(i) Either:
(I) By claiming the Stimulus additional
first year depreciation deduction for any
eligible qualified property placed in service by the taxpayer during such taxable
year on its timely-filed federal income tax
return for such taxable year. Such property
must not be property in a class for which
the taxpayer elects out of the Stimulus additional first year depreciation deduction
under § 168(k)(2)(D)(iii); or
(II) By filing with its timely-filed federal income tax return for such taxable
year the 2007 Form 4562, Depreciation
and Amortization (Including Information
on Listed Property), indicating that the
taxpayer used the straight line method and
did not claim the Stimulus additional first
year depreciation deduction for all eligible
qualified property. Taxpayers that choose
to follow this section 3.02(1)(a)(i)(II)
must not claim a refundable credit on their
original federal income tax return. To
claim the refundable credit, see section
3.02(1)(a)(ii).
(ii) By filing an amended federal income tax return for such taxable year in the
manner described in section 3.02(2) on or
before the due date (without regard to extensions) of the taxpayer’s federal income
tax return for the succeeding taxable year;
and
(iii) If the taxpayer is a partner in a partnership, by notifying the partnership in accordance with section 5.02 of this revenue
procedure.
(b) If the taxpayer has filed its original
federal income tax return for such taxable
year on or before March 11, 2009, the taxpayer makes the § 168(k)(4) election by
following the procedures set forth in section 3.02(1)(a)(ii) and (iii) of this revenue
procedure.

451

(2) Special rules for filing amended return. If the taxpayer filing the amended
federal income tax return under section
3.02(1)(a)(ii) of this revenue procedure:
(a) is not an S corporation, the taxpayer
(i) includes the amount of the refundable
credit allowed by the § 168(k)(4) election
on Line 5g of the Form 1120X, Amended
U.S. Corporation Income Tax Return, (ii)
makes appropriate adjustments to Lines 2,
3, and 4 of the Form 1120X to reflect the
requirements of § 168(k)(4)(A) (requiring
that the depreciation deduction for all eligible qualified property be determined by
using the straight line method and by not
claiming the Stimulus additional first year
depreciation deduction), and (iii) indicates
in Part II of the Form 1120X that the taxpayer is making the § 168(k)(4) election.
The taxpayer should refer to the instructions to the 2008 Form 1120, U.S. Corporation Income Tax Return, the 2008 Form
3800, General Business Credit, and the
2008 Form 8827, Credit for Prior Year
Minimum Tax — Corporations, for guidance regarding computation of the refundable credit and allocation of the bonus depreciation amount between the business
and AMT credit limitations; or
(b) is an S corporation, the taxpayer
(i) makes appropriate adjustments to Line
22b of the amended Form 1120S, U.S.
Income Tax Return for an S Corporation, to reflect the results described in
section 6.02 of this revenue procedure
from making the § 168(k)(4) election,
(ii) makes appropriate adjustments on the
amended Form 1120S to reflect the requirements of § 168(k)(4)(A) (requiring
that the depreciation deduction for all eligible qualified property be determined by
using the straight line method and by not
claiming the Stimulus additional first year
depreciation deduction), and (iii) attaches
a statement to the amended Form 1120S
indicating that the taxpayer is making the
§ 168(k)(4) election and a statement showing the computation of the increases to the
business credit and AMT credit limitations
under, respectively, §§ 38(c) and 53(c)
resulting from making the § 168(k)(4)
election. The S corporation also should
follow the instructions to the Form 1120S
for filing an amended return.
.03 Special Rules for Taxpayers Whose
First Taxable Year Ending After March 31,
2008, Ends Before December 31, 2008.

February 9, 2009

(1) If a taxpayer described in section 3.02(1)(b) of this revenue procedure
makes the § 168(k)(4) election on its
timely-filed original federal income tax
return and receives a refundable credit
attributable to the § 168(k)(4) election
made on such return, such taxpayer must
not file the amended federal income tax
return required by section 3.02(1)(a)(ii)
and 3.02(1)(b) of this revenue procedure. However, such taxpayer must follow
the notification procedures described in
section 3.02(1)(a)(iii) of this revenue procedure.
(2) If a taxpayer described in section
3.02(1) of this revenue procedure wishes
to make the § 168(k)(4) election but has
not placed in service any eligible qualified property during its first taxable year
ending after March 31, 2008, the taxpayer
makes the § 168(k)(4) election by attaching a statement to its timely-filed federal
income tax return for that taxable year,
indicating that the taxpayer is making
the § 168(k)(4) election. If a taxpayer
described in section 3.02(1)(b) of this
revenue procedure wishes to make the
§ 168(k)(4) election but has not placed
in service any eligible qualified property
during its first taxable year ending after
March 31, 2008, and did not attach a statement to its original federal income tax
return for such taxable year indicating that
the taxpayer is making the § 168(k)(4)
election, the taxpayer must attach such
statement to the amended federal income
tax return required by section 3.02(1)(a)(ii)
and 3.02(1)(b) of this revenue procedure
and follow the notification procedures
described in section 3.02(1)(a)(iii) of this
revenue procedure.
.04 Taxpayer’s First Taxable Year Ending After March 31, 2008, Ends on or After
December 31, 2008.
(1) C corporations. Except as provided
in section 3.04(3) of this revenue procedure, if a taxpayer’s first taxable year ending after March 31, 2008, ends on or after December 31, 2008, a C corporation
makes the § 168(k)(4) election by:
(a) Claiming the refundable credit on
Line 32g of the 2008 Form 1120;
(b) Filing the 2008 Form 3800 or Form
8827, or both, as applicable. Taxpayers
should refer to the applicable instructions
to the 2008 Forms 3800 and 8827 for guidance regarding computation of the refundable credit and allocation of the bonus de-

February 9, 2009

preciation amount between the business
credit limitation and AMT credit limitation;
(c) Filing the 2008 Form 4562, Depreciation and Amortization (Including Information on Listed Property), indicating that
the taxpayer used the straight line method
and did not claim the Stimulus additional
first year depreciation deduction for all eligible qualified property; and
(d) Notifying any partnership in which
the C corporation is a partner, in accordance with section 5.02 of this revenue
procedure.
(2) S corporations. Except as provided
in section 3.04(3) of this revenue procedure, if a taxpayer’s first taxable year ending after March 31, 2008, ends on or after December 31, 2008, an S corporation
makes the § 168(k)(4) election by:
(a) Making appropriate adjustments to
Line 22b of the 2008 Form 1120S to reflect the results described in section 6.02
of this revenue procedure from making the
§ 168(k)(4) election;
(b) Attaching to the Form 1120S a
statement indicating that the taxpayer is
making the § 168(k)(4) election and a
statement showing the computation of
the increases to the business credit and
AMT credit limitations under, respectively, §§ 38(c) and 53(c) resulting from
making the § 168(k)(4) election;
(c) Filing the 2008 Form 4562 indicating that the taxpayer used the straight line
method and did not claim the Stimulus additional first year depreciation deduction
for all eligible qualified property; and
(d) Notifying any partnership in which
the S corporation is a partner, in accordance with section 5.02 of this revenue
procedure.
(3) No eligible qualified property
placed in service during first taxable year
ending after March 31, 2008, ending on or
after December 31, 2008. If a taxpayer’s
first taxable year ending after March 31,
2008, ends on or after December 31, 2008,
and the taxpayer has not placed in service any eligible qualified property during
such taxable year, the taxpayer makes the
§ 168(k)(4) election by attaching a statement to its timely-filed federal income tax
return for that taxable year, indicating that
the taxpayer is making the § 168(k)(4)
election.
.05 Controlled Groups.

452

(1) Determination of Controlled Group
Members.
(a) First taxable year ending after
March 31, 2008. For purposes of applying
§ 168(k)(4) and this revenue procedure for
the first taxable year ending after March
31, 2008, § 168(k)(4)(C)(iv) is applied
to determine the members of a controlled
group (as defined in section 2.05 of this
revenue procedure) on December 31,
2008, and all such members on that date
are treated as a controlled group and as
one taxpayer. However, if the first taxable
year ending after March 31, 2008, ends on
the same date for all members of a controlled group (as defined in section 2.05 of
this revenue procedure), all members on
such ending date are treated as a controlled
group and as one taxpayer for purposes
of applying § 168(k)(4) and this revenue
procedure for the first taxable year ending
after March 31, 2008.
(b) Subsequent taxable years. For
purposes of applying § 168(k)(4) and
this revenue procedure for any taxable
year subsequent to a taxpayer’s first taxable year ending after March 31, 2008,
§ 168(k)(4)(C)(iv) is applied to determine
the members of a controlled group (as
defined in section 2.05 of this revenue
procedure) on December 31. However,
if a taxable year subsequent to the first
taxable year ending after March 31, 2008,
ends on the same date for all members
of a controlled group (as defined in section 2.05 of this revenue procedure), all
members on such ending date are treated
as a controlled group and as one taxpayer
for purposes of applying § 168(k)(4) and
this revenue procedure for that subsequent
taxable year.
(2) Time and manner of making the
§ 168(k)(4) election.
(a) In general. A § 168(k)(4) election
made by any member of a controlled group
(as determined under section 3.05(1)(a) of
this revenue procedure) is binding on all
other members of the controlled group for
all members’ first taxable year ending after
March 31, 2008. If in a subsequent taxable year, a controlled group determined
under section 3.05(1)(b) of this revenue
procedure (the second controlled group)
includes 2 or more members of a controlled group determined under 3.05(1)(a)
of this revenue procedure (the first controlled group), all members of the second
controlled group that were members of the

2009–6 I.R.B.

first controlled group are deemed to have
made (or not made, as the case may be) the
§ 168(k)(4) election of the first controlled
group. Whether members of the second
controlled group that were not members of
the first controlled group are bound by a
§ 168(k)(4) election made by the first controlled group (or bound by the first controlled group’s lack of a § 168(k)(4) election) is determined under the rules of section 3.05(2)(d) of this revenue procedure.
(b) All members of a controlled group
constitute a single consolidated group.
If all members of a controlled group are
members of an affiliated group of corporations that file a consolidated return
(hereinafter, a “consolidated group”), the
common parent (within the meaning of
§ 1.1502–77(a)(1)(i)) of the consolidated
group makes the § 168(k)(4) election on
behalf of all members of the consolidated
group. The common parent makes this
election within the time and in the manner
provided in sections 3.01, 3.02, 3.03, or
3.04 of this revenue procedure, as applicable.
(c) All members of a controlled group
do not constitute a single consolidated
group.
(i) In general. This section 3.05(2)(c)
applies when separate federal income tax
returns are filed by some or all members of
a controlled group. If a controlled group
includes, but is not limited to, members
of a consolidated group, the consolidated
group is treated as a single member of the
controlled group. A member of the controlled group makes the § 168(k)(4) election by:
(I) Following the procedures in section
3.05(2)(c)(ii) or (iii) of this revenue procedure, as applicable; and
(II) Notifying all other members of
the controlled group that the § 168(k)(4)
election has been made. This notification
must be made before the due date (excluding extensions) of the member’s federal
income tax return for the first taxable
year ending after March 31, 2008. If the
electing member makes the § 168(k)(4)
election by filing an amended return under sections 3.02(1)(a)(ii) or 3.03(2) of
this revenue procedure, as applicable, the
electing member must notify the other
members no later than the date it files an
amended return containing the § 168(k)(4)
election. If the electing member is described in section 3.03(1) of this revenue

2009–6 I.R.B.

procedure, the electing member must notify the other members on or before March
11, 2009.
(ii) Controlled group member’s first
taxable year ending after March 31, 2008,
ends before December 31, 2008. If a controlled group member’s first taxable year
ending after March 31, 2008, ends before
December 31, 2008, that member makes
the § 168(k)(4) election within the time
and in the manner provided in sections
3.02 or 3.03(2) of this revenue procedure,
as applicable. In addition, the member
must attach to the amended federal income
tax return:
(I) a statement describing the computation of the group bonus depreciation amount (as provided in section
4.02(3)(b)(ii) of this revenue procedure);
and
(II) Schedule O (Form 1120X), Consent Plan and Apportionment Schedule for
a Controlled Group, and indicating in column (f) of Part IV that the controlled group
has made the § 168(k)(4) election and the
portion of the group bonus depreciation
amount allocated to the member (as provided in section 4.02 of this revenue procedure).
(iii) Controlled group member’s first
taxable year ending after March 31, 2008,
ends on or after December 31, 2008. If
a controlled group member’s first taxable year ending after March 31, 2008,
ends on or after December 31, 2008, that
member makes the § 168(k)(4) election
within the time provided in section 3.01 of
this revenue procedure and in the manner
provided in section 3.04 of this revenue
procedure. In addition, the member must
attach to the federal income tax return:
(I) a statement describing the computation of the group bonus depreciation amount (as provided in section
4.02(3)(b)(ii) of this revenue procedure);
and
(II) Schedule O (Form 1120) and indicating in column (f) of Part IV that the
controlled group has made the § 168(k)(4)
election and the portion of the group bonus
depreciation amount allocated to the member (as provided in section 4.02 of this revenue procedure).
(d) Effect of § 168(k)(4) election for
members entering or leaving a controlled
group.
(i) Member leaves controlled group that
made § 168(k)(4) election. If a taxpayer

453

is a member of a controlled group that
makes the § 168(k)(4) election (the old
group), and in a subsequent taxable year
becomes a member of another controlled
group that has not made the § 168(k)(4)
election (the new group), the § 168(k)(4)
election of the old group is not binding on
the new group. The taxpayer, however,
continues to be treated as having made
the § 168(k)(4) election and must continue
to apply §§ 167(f)(1) and 168 as if the
§ 168(k)(4) election was made. Similarly,
if a taxpayer is a member of a controlled
group that makes the § 168(k)(4) election
(the old group), and in a subsequent taxable year leaves the old group and does not
become a member of another controlled
group, the taxpayer continues to be treated
as having made the § 168(k)(4) election
and must continue to apply §§ 167(f)(1)
and 168 as if the § 168(k)(4) election was
made.
(ii) Taxpayer becomes a member of a
controlled group after § 168(k)(4) election
is made. If a taxpayer was not a member
of any controlled group when the taxpayer made the § 168(k)(4) election and
in a subsequent taxable year becomes a
member of a controlled group that did
not make the § 168(k)(4) election, the
taxpayer’s election is not binding on the
controlled group. The taxpayer, however,
continues to be treated as having made
the § 168(k)(4) election and must continue to apply §§ 167(f)(1) and 168 as
if the § 168(k)(4) election was made. If
a taxpayer neither made the § 168(k)(4)
election nor was a member of a controlled
group that made the § 168(k)(4) election,
and in a subsequent taxable year becomes
a member of a controlled group that made
the § 168(k)(4) election, the controlled
group’s election does not apply to the taxpayer.
(iii) Special rule for consolidated
groups.
Notwithstanding section
3.05(2)(d)(i) and (ii) of this revenue procedure, a § 168(k)(4) election (or the lack
of a § 168(k)(4) election) made by a consolidated group (or a controlled group in
which the consolidated group is a member)
applies to any eligible qualified property
placed in service by a member of the
consolidated group during a consolidated
return year, even if such member is not
a member of the consolidated group on
the date that controlled group membership

February 9, 2009

is determined under section 3.05(1)(a) of
this revenue procedure.
(iv) Special rule for new taxpayers. If
a taxpayer was not in existence for the
first taxable year for which the § 168(k)(4)
election is made by a controlled group
(as defined in section 3.05(1)(a) of this
revenue procedure), immediately after
the taxpayer’s formation the taxpayer is
a member of that controlled group, and
the taxpayer is a member of that controlled group as determined under section
3.05(1)(b) of this revenue procedure, that
controlled group’s § 168(k)(4) election,
if any election is made, applies to the
taxpayer. For example, if a controlled
group makes the § 168(k)(4) election and
subsequently transfers eligible qualified
property to a newly formed member of the
same controlled group (on the day of its
formation and on the determination date
under section 3.05(1)(b) of this revenue
procedure), such property remains eligible
qualified property to which the § 168(k)(4)
election applies and must be depreciated
using the straight line method.
(v) Overlapping groups. For purposes
of this revenue procedure, for any taxable year a taxpayer will not be considered a member of more than one controlled
group. A taxpayer is considered a member
of a single controlled group in accordance
with the principles of § 1.1563–1T(c) of
the temporary Income Tax Regulations.
.06 Limited Relief for Late Election.
(1) Automatic 6-Month Extension. Pursuant to § 301.9100–2(b) of the Procedure and Administration Regulations, an
automatic extension of 6 months from the
due date of the federal tax return (excluding extensions) for the taxpayer’s first taxable year ending after March 31, 2008, is
granted to make the § 168(k)(4) election,
provided the taxpayer timely filed the taxpayer’s federal tax return for the taxpayer’s
first taxable year ending after March 31,
2008, and the taxpayer satisfies the requirements in § 301.9100–2(c) and (d).
(2) Other Extensions. A taxpayer that
fails to make the § 168(k)(4) election for
the taxpayer’s first taxable year ending after March 31, 2008, as provided in section 3.01, 3.02, 3.03, 3.04, 3.05, or 3.06(1)
of this revenue procedure but wants to do
so must file a request for an extension of
time to make the election under the rules
in § 301.9100–3.

February 9, 2009

SECTION 4. ALLOCATION OF THE
BONUS DEPRECIATION AMOUNT
.01 In General. A taxpayer allocates
the bonus depreciation amount between
the business credit limitation under § 38(c)
and the AMT credit limitation under
§ 53(c) by the due date (including extensions) of the taxpayer’s federal income
tax return for the taxable year. Except as
provided in section 4.02 of this revenue
procedure, the taxpayer specifies this allocation by reporting the amounts on the
appropriate lines of the Forms 3800 and
8827. However, if a taxpayer’s first taxable year ending after March 31, 2008,
ends before December 31, 2008, the taxpayer makes and specifies the allocation
for such taxable year on the amended
federal income tax return filed pursuant
to section 3.02(1)(a)(ii) or 3.03(2) of this
revenue procedure. A different allocation
may be used for different taxable years.
.02 Controlled Groups.
(1) In general. If a taxpayer is a member of a controlled group (as determined
under section 3.05(1) of this revenue procedure) and any member of the controlled
group makes the § 168(k)(4) election, the
allocation of the group bonus depreciation
amount to each member of the controlled
group must be determined in accordance
with section 4.02(2) or 4.02(3) of this revenue procedure, as applicable. This allocation of the group bonus depreciation
amount for any taxable year is reported
on Schedule O (Form 1120) (or a similar
statement) that is attached to the federal
income tax return or amended federal income tax return for that taxable year, as
the case may be, filed by each member of
the controlled group within the time provided in section 4.01 of this revenue procedure. However, if a member of a controlled group does not have the information necessary to allocate the group bonus
depreciation amount for a taxable year on
or before the due date (including extensions) of the member’s federal income tax
return for the taxable year, the member
must make and specify the allocation for
that taxable year on an amended federal income tax return for that taxable year that
is filed on or before the due date (including extensions) of the member’s federal income tax return for the succeeding taxable
year. The allocation described in this section 4.02 of this revenue procedure applies

454

to all controlled group members who have
made a section 168(k)(4) election or who
are treated as having made such an election pursuant to section 3.05 of this revenue procedure.
(2) All members of a controlled group
constitute a single consolidated group.
If all members of a controlled group are
members of a consolidated group (as defined in section 3.05(2)(b) of this revenue
procedure), the consolidated group determines its bonus depreciation amount in
accordance with section 5 of Rev. Proc.
2008–65, treating the consolidated group
as a single taxpayer. The allocation of
the bonus depreciation amount among
the members of the consolidated group
must be pursuant to an allocation by the
common parent in accordance with the
principles of § 1502 and its accompanying
regulations.
(3) All members of a controlled group
do not constitute a single consolidated
group.
(a) In general. This section 4.02(3)
applies when separate federal income tax
returns are filed by some or all members of
a controlled group. If a controlled group
includes, but is not limited to, members
of a consolidated group, the consolidated
group is treated as a single member of
the controlled group. The allocation of
the bonus depreciation amount among the
members of the controlled group must be
made pursuant to section 4.02(3)(b) or (c)
of this revenue procedure, as applicable.
Any group bonus depreciation amount
allocated to a consolidated group under
this section 4.02(3) is allocated among
the members of the consolidated group
pursuant to an allocation by the common
parent in accordance with the principles of
§ 1502 and its accompanying regulations.
(b) Allocation of group bonus depreciation amount.
(i) In general. The bonus depreciation
amount allocable to a member of a controlled group is determined by arriving at
each member’s proportionate share of the
group bonus depreciation amount, unless
all members of the group agree to an alternative allocation under section 4.02(3)(c)
of this revenue procedure.
(ii) Computation of group bonus depreciation amount. The group bonus depreciation amount is computed as follows:
(A) First, calculate the bonus depreciation amount in the manner provided in sec-

2009–6 I.R.B.

tions 5.01 and 5.02 of Rev. Proc. 2008–65
treating the controlled group as a single
taxpayer. To calculate this amount, the eligible qualified property placed in service
by each member of the controlled group
during the taxable year is taken into account. However, if some or all members of
the controlled group have different taxable
years, the eligible qualified property to be
taken into account is such property placed
in service by each member of the controlled group after March 31, 2008, and before January 1, 2009 (or, for taxable years
ending in 2009 or thereafter, during such
calendar year);
(B) Second, calculate the maximum
increase amount in section 5.04 of Rev.
Proc. 2008–65, the business credit increase amount in section 5.05 of Rev.
Proc. 2008–65, and the AMT credit increase amount in section 5.06 of Rev.
Proc. 2008–65 by taking into account the
sum of all member’s pre–2006 unexpired
and unused research credits and AMT
credits as of the last day of the taxable year.
However, if the taxable years of some or
all members of the controlled group end
on different dates, the sum of all members’
pre–2006 unexpired and unused research
credits and AMT credits as of the last day
of each member’s last taxable year ending
on or before December 31 (determined for
each calendar year) are taken into account;
and
(C) Finally, calculate the maximum
amount in section 5.03 of Rev. Proc.
2008–65 to arrive at the group bonus depreciation amount for the taxable year.
(iii) Member’s proportionate share of
group bonus depreciation amount. Each
member’s proportionate share of the group
bonus depreciation amount is equal to
the group bonus depreciation amount determined under section 4.02(3)(b)(ii)(C)
of this revenue procedure multiplied by
a fraction, the numerator of which is
the amount such member contributed
to the total computed under section
4.02(3)(b)(ii)(A) of this revenue procedure
and the denominator of which is the total
computed under section 4.02(3)(b)(ii)(A)
of this revenue procedure. If the taxable
years of some or all members of the controlled group end on different dates, all (if
any) of a member’s proportionate share
of group bonus depreciation amount must
be claimed by such member in the taxable
year of the member to which such share

2009–6 I.R.B.

relates (determined by reference to the eligible qualified property’s placed in service
date).
(c) Allocation agreement. In lieu of
the method provided in section 4.02(3)(b)
of this revenue procedure, the controlled
group may allocate the group bonus depreciation amount (computed as provided in
section 4.02(3)(b)(ii) of this revenue procedure) to any member in any proportion
that all members of the controlled group
agree. Any agreement, and the amounts
allocated to all members pursuant to such
agreement, must be shown on Schedule
O (Form 1120) (or a similar statement)
within the time and in the manner provided in section 4.02(1) of this revenue
procedure. A subsequent agreement may
be filed (shown on Schedule O (or similar statement) within the time and in the
manner provided in section 4.01(1) of this
revenue procedure) that varies the group
bonus depreciation amounts allocated to
controlled group members in taxable years
after the group’s first taxable year ending
after March 31, 2008.
.04 Example 1. A, B, and C are corporations that,
on December 31, 2008, are the only members of the
ABC controlled group. A’s first taxable year ending
after March 31, 2008, ends on June 30, 2008. B and
C’s first taxable year ending after March 31, 2008,
ends on December 31, 2008. As of June 30, 2008, A
has $300 million of unexpired and unused pre–2006
research and AMT credit carryforwards. As of December 31, 2008, B and C each have $300 million of
unexpired and unused pre–2006 research and AMT
credit carryforwards. Therefore, as of December 31,
2008, the ABC controlled group has $900 million of
unexpired and unused pre–2006 research and AMT
credit carryforwards.
On May 1, 2008, A and B each placed in service eligible qualified property that costs $50 million
and is 5-year property under § 168(e). On September 1, 2008, A also placed in service eligible qualified property that costs $100 million and is 5-year
property under § 168(e). A, B, and C depreciate
their 5-year property using the optional depreciation
table that corresponds with the general depreciation
system, the 200-percent declining balance method, a
5-year recovery period, and the half-year convention.
For each of the properties placed in service on May
1, 2008, the difference between the aggregate amount
of depreciation that would be allowable for the property if the Stimulus additional first year depreciation
deduction applied over the aggregate amount of depreciation that would be allowable for the property if
the Stimulus additional first year depreciation deduction did not apply is $20 million. That amount for
the property placed in service by A on September 1,
2008, is $40 million.
For its taxable year ending June 30, 2008, A
makes the § 168(k)(4) election by filing an amended
federal income tax return (Form 1120X) on January 15, 2009, in the manner provided by section

455

3.05(2)(c)(ii) of this revenue procedure. At the time
A’s Form 1120X is filed, A, B, and C have not entered into any agreement regarding the allocation of
the bonus depreciation amount among them.
(1) Under section 4.02(3)(b)(ii) of this revenue
procedure, the ABC controlled group’s group bonus
depreciation amount is 20 percent of $80 million, or
$16 million. Under section 4.02(3)(b)(ii) of this revenue procedure, because $16 million is less than (i)
$30 million and (ii) 6 percent of the ABC controlled
group aggregate unexpired and unused pre–2006 research and AMT credits (.06 X $900 million, or $54
million), the ABC controlled group is not limited by
the maximum increase amount. Thus, under section
4.02(3)(b)(ii)(C) of this revenue procedure, the ABC
controlled group’s group bonus depreciation amount
for the period ending on December 31, 2008, is $16
million.
(2) Under section 4.02(3)(b)(iii) of this revenue
procedure, A’s proportionate share of the group bonus
depreciation amount is $12 million ($16 million X
($60 million/$80 million)). For its taxable year ending June 30, 2008, A may increase its business credit
and AMT credit limitations under, respectively,
§§ 38(c) and 53(c) by, and claim a refundable credit
of, $4 million ($12 million X ($20 million/$60 million)) on its Form 1120X. For its taxable year ending
June 30, 2009, A may increase its business credit and
AMT credit limitations by $8 million ($12 million
X ($40 million/$60 million)) (plus any group bonus
depreciation amount calculated for the group and
allocated to A for the period January 1, 2009, through
December 31, 2009). In addition, B’s proportionate
share of the group bonus depreciation amount is $4
million ($16 million X ($20 million/$80 million)).
B may increase its business credit and AMT credit
limitations under, respectively, §§ 38(c) and 53(c)
by, and claim a refundable credit of, $4 million on its
original federal income tax return for its taxable year
ending December 31, 2008. The ABC controlled
group then has a maximum amount of $14 million
of bonus depreciation amount ($30 million less the
$16 million allocated to A and B) remaining to be
used for eligible qualified property placed in service
by the ABC controlled group after December 31,
2008 (e.g., long-lived property or certain aircraft).
The result of this Example is the same if, instead
of a single corporation, A represents a consolidated
group of corporations, except the $12 million of
group bonus depreciation amount allocated to A is
reallocated within the A consolidated group pursuant
to an allocation by the common parent in accordance
with the principles of § 1502 and its accompanying
regulations.
(b) Example 2. The facts are the same as in Example 1, except A has no pre–2006 business credit
or AMT credit carryforwards as of the last day of its
June 30, 2008, taxable year and C has $600 million
of pre–2006 research credit and AMT credit carryforwards as of December 31, 2008. Although A may
increase its §§ 38(c) and 53(c) credit limitations for
its taxable year ending June 30, 2008, A has no credit
carryforwards that A may use to claim a refundable
credit. Absent an allocation agreement, B and C may
not be allocated any portion of the bonus depreciation amount that was allocated to A under section
4.02(3)(b)(iii) of this revenue procedure. The ABC
controlled group, therefore, has $26 million of group
bonus depreciation ($30 million less the $4 million

February 9, 2009

allocated to B) remaining to be used for eligible qualified property placed in service by the ABC controlled
group after December 31, 2008.
(c) Example 3. The facts are the same as Example 2, except A, B, and C have entered into an agreement regarding the allocation of the group bonus depreciation amount. The agreement provides that C
will be allocated all of the group bonus depreciation
amount. C, therefore, may increase its business and
AMT credit limitations under, respectively, §§ 38(c)
and 53(c) by, and claim a refundable credit of, $16
million on its original income tax return for its taxable year ending December 31, 2008. Neither A nor
B may claim the refundable credit for their taxable
years ending June 30, 2008, and December 31, 2008,
respectively. The ABC controlled group has a maximum amount of $14 million of bonus depreciation
amount ($30 million less the $16 million allocated to
C) remaining to be used for eligible qualified property placed in service by the ABC controlled group
after December 31, 2008.

SECTION 5. PARTNERSHIPS WITH
CORPORATE PARTNERS THAT MAKE
THE § 168(k)(4) ELECTION
.01 Partnership’s Information to Partner.
(1) In general. If a corporation makes
the § 168(k)(4) election and is a partner in
a partnership (electing corporate partner),
the partnership must provide the electing
corporate partner with sufficient information to apply § 168(k)(4)(G)(ii) in determining its distributive share of partnership items under § 702 relating to any eligible qualified property placed in service
by the partnership during the taxable year.
This information must be provided in the
time and manner required by § 6031(b)
and § 1.6031(b)–1T(a)(3)(ii) and (b). If
the partnership has filed its federal tax return for its first taxable year ending after
March 31, 2008, on or before February 9,
2009, and did not provide the electing corporate partner with sufficient information
to apply § 168(k)(4)(G)(ii), the partnership
must provide such information to the electing corporate partner by the later of May
11, 2009, or 90 calendar days after receiving the corporate partner’s notification as
required by section 5.02 of this revenue
procedure.
(2) Determination of Electing Corporate Partner’s Distributive Share. A
partnership must compute an electing
corporate partner’s distributive share of
depreciation and make other correlative adjustments attributable to eligible
qualified property placed in service by
the partnership using any reasonable

February 9, 2009

method that is consistent with the intent
of § 168(k)(4)(G)(ii). For example, the
partnership may apply principles similar
to those in § 743(b) and the regulations
thereunder to the extent appropriate to
make adjustments to the basis of the eligible qualified property and the electing
corporate partner’s distributive share of
depreciation attributable to such property.
.02 Electing Corporate Partner’s Notification to Partnership. An electing corporate partner must notify the partnership, in
writing, that the corporate partner is making the § 168(k)(4) election. This notification must be made on or before the due
date (including extensions) of the electing
corporate partner’s federal income tax return for its first taxable year ending after
March 31, 2008. If the electing corporate partner makes the § 168(k)(4) election by filing an amended return under sections 3.02(1)(a)(ii) or 3.03(2) of this revenue procedure, as applicable, the electing corporate partner must notify the partnership on or before the date it files an
amended return containing the § 168(k)(4)
election. If the electing corporate partner is described in section 3.03(1) of this
revenue procedure, the electing corporate
partner must notify the partnership on or
before March 11, 2009. Failure to comply with the notification requirement provided by this section 5.02 will nullify a taxpayer’s attempted § 168(k)(4) election.

tax any business and AMT credit carryforwards that arose in a taxable year in which
the corporation was a C corporation. The
credits allowed by § 1374(b)(3)(B) are
subject to three limitations: the business
credit limitation in § 38(c), the AMT credit
limitation in § 53(c), and the amount of
the § 1374(a) tax. Sections 1374(b)(3)(B)
and 1.1374–6(b). If an S corporation
makes the § 168(k)(4) election, the S corporation calculates its bonus depreciation
amount as provided in section 5 of Rev.
Proc. 2008–65, increases its business and
AMT credit limitations, uses the straight
line method for depreciating its eligible
qualified property, and must not claim the
Stimulus additional first year depreciation
deduction for such property. However, the
§ 168(k)(4) election does not increase the
S corporation’s § 1374(b)(3)(B) limitation. Therefore, if the § 168(k)(4) election
is made, an S corporation may not claim
business credits or AMT credits in excess of its § 1374(a) tax for the taxable
year. Any credits allowed as a result of
the increase in the business or AMT credit
limitations, which may be used only as an
additional credit against the § 1374(a) tax,
are not refundable to the S corporation.
.03 Time and Manner for Making the
§ 168(k)(4) Election. An S corporation
makes the § 168(k)(4) election within the
time and in the manner provided in section
3 of this revenue procedure.

SECTION 6. APPLICATION OF
§ 168(k)(4) TO S CORPORATIONS
AND THEIR SHAREHOLDERS

SECTION 7. APPLICATION OF
§ 3081(b) OF THE HOUSING ACT

.01 In General. An S corporation is
allowed to make the § 168(k)(4) election. However, any business or AMT
credit limitation increases that result from
a § 168(k)(4) election are applied at the
corporate level and not at the shareholder
level. Thus, a shareholder of an S corporation must not increase the shareholder’s
business or AMT credit limitations under,
respectively, §§ 38(c) and 53(c) by the
bonus depreciation amount that results
from a § 168(k)(4) election made by the
S corporation.
.02 Applicability to S Corporations.
Under § 1374(a), an S corporation is subject to tax on its recognized built-in gains
during its taxable year. In general, under § 1374(b)(3)(B), an S corporation is
allowed as a credit against the § 1374(a)

456

.01 In General. Section 3081(b)(1)
of the Housing Act allows an applicable partnership to elect to be treated as
making a deemed payment of income tax
(the “deemed payment”) in the amount
determined under section 7.03 of this revenue procedure. This election applies to
any taxable year during which eligible
qualified property is placed in service by
the applicable partnership. See section
3 of Rev. Proc. 2008–65 for determining which depreciable property qualifies
as eligible qualified property. Notwithstanding any other provision of the Code,
the deemed payment is refundable to the
applicable partnership and may not be
treated as an offset or credit against any
tax liability of the applicable partnership
or any partner. Section 3081(b)(2)(A) of
the Housing Act.

2009–6 I.R.B.

.02 Definition of Applicable Partnership. An applicable partnership is a domestic partnership that was formed effective on August 3, 2007, and will produce
in excess of 675,000 automobiles during
the period beginning on January 1, 2008,
and ending on June 30, 2008. Section
3081(b)(4)(A) of the Housing Act.
.03 Computation of the Deemed Payment. Pursuant to § 3081(b)(1)(A) and
(b)(3) of the Housing Act, the amount of
the deemed payment for the taxable year
is equal to the lesser of:
(1) 20 percent of the excess (if any) of
the aggregate amount of depreciation that
would be allowable for eligible qualified
property placed in service by the applicable partnership during the taxable year if
the Stimulus additional first year depreciation deduction applied to all such property, over the aggregate amount of depreciation that would be allowable for all eligible qualified property placed in service by
the applicable partnership during the taxable year if the Stimulus additional first
year depreciation deduction did not apply
to any such property. For purposes of computing this amount, the rules in section
5.02 of Rev. Proc. 2008–65 apply;
(2) the applicable partnership’s research
credit (determined under § 41) for the taxable year; or
(3) $30 million less any deemed payments made by the applicable partnership
under § 3081(b) of the Housing Act for all
prior taxable years.
.04 Effect of Making Election under
§ 3081(b) of the Housing Act. If an applicable partnership makes the election to
apply § 3081(b) of the Housing Act (the
“§ 3081(b) Housing Act election”), the
applicable partnership (1) must determine
the depreciation deduction for any eligible
qualified property placed in service by
the partnership during the taxable year
by using the straight line method and by
not claiming the Stimulus additional first
year depreciation deduction, and (2) must
reduce the amount of its research credit
for the taxable year by the amount of the
deemed payment for the taxable year. Section 3081(b)(1)(B) and (C).
.05 Time and Manner of Making
§ 3081(b) Housing Act Election.
(1) Time for making election. An applicable partnership must make the § 3081(b)
Housing Act election by the due date (including extensions) of the Form 1065, U.S.

2009–6 I.R.B.

Return of Partnership Income, for the partnership’s first taxable year ending after
March 31, 2008. Even if an applicable
partnership does not place in service any
eligible qualified property during its first
taxable year ending after March 31, 2008,
the partnership must make the § 3081(b)
Housing Act election for that taxable year
if the partnership wishes to apply the election to eligible qualified property placed in
service in subsequent taxable years.
(2) Manner of making election. An applicable partnership makes the § 3081(b)
Housing Act election by making the following statement (printed legibly or typed)
on its timely-filed Form 1065 for the first
taxable year ending after March 31, 2008,
in the space below the signature section of
the Form 1065: “A refund in the amount
of $[Insert Amount] is requested pursuant
to Section 3081(b)(1) of P. L. 110–289, the
Housing and Economic Recovery Act of
2008.”
(3) Limited Relief for Late Election.
(a) Automatic 6-Month Extension. Pursuant to § 301.9100–2(b) of the Procedure
and Administration Regulations, an automatic extension of 6 months from the due
date of the federal tax return (excluding extensions) for the applicable partnership’s
first taxable year ending after March 31,
2008, is granted to make the § 3081(b)
Housing Act election, provided the applicable partnership timely filed its federal
tax return for its first taxable year ending after March 31, 2008, and the applicable partnership satisfies the requirements
in § 301.9100–2(c) and (d).
(b) Other Extensions. An applicable
partnership that fails to make the § 3081(b)
Housing Act election for the applicable
partnership’s first taxable year ending after March 31, 2008, as provided in section
7.05(1) and (2) of this revenue procedure
or in section 7.05(3)(a) of this revenue procedure but wants to do so must file a request for an extension of time to make the
election under the rules in § 301.9100–3.
.06 Filing of Form 1065.
(1) In general. For the taxable year in
which the § 3081(b) Housing Act election
is made (the “year of election”) and for any
subsequent taxable year in which an applicable partnership is claiming a refundable
deemed payment under § 3081(b) of the
Housing Act, the partnership’s Form 1065
and related forms and schedules (including Schedules K–1) must not be filed

457

electronically. Further, the applicable
partnership must mail the Form 1065 and
related forms and schedules (including
Schedules K–1) to: Internal Revenue Service, 1973 N. Rulon White Blvd., Attn:
Audrey Martinez Mail Stop 1120, Ogden,
UT 84201.
(2) Taxable years subsequent to the year
of election. If the applicable partnership
claims a refundable deemed payment under § 3081(b) of the Housing Act for any
taxable year subsequent to the year of election, the partnership must make the following statement (printed legibly or typed) on
its Form 1065 for that taxable year in the
space below the signature section of the
Form 1065: “A refund in the amount of
$[Insert Amount] is requested pursuant to
Section 3081(b)(1) of P. L. 110–289, the
Housing and Economic Recovery Act of
2008.”
SECTION 8. EFFECT ON OTHER
DOCUMENTS
Rev. Proc. 2008–65 is amplified and
supplemented.
SECTION 9. PAPERWORK
REDUCTION ACT
The collections of information contained in this revenue procedure have
been reviewed and approved by the Office
of Management and Budget in accordance with the Paperwork Reduction Act
(44 U.S.C. 3507) under control number
1545–2133. An agency may not conduct
or sponsor, and a person is not required to
respond to, a collection of information unless the collection of information displays
a valid OMB control number.
The collections of information in this
revenue procedure are in sections 3, 4, 5,
and 7. This information is necessary and
will be used to determine whether the taxpayer is eligible to make the § 168(k)(4)
election and the amount by which the election increases the taxpayer’s applicable
credit limitations. The collections of information are required for the taxpayer to
make the § 168(k)(4) election. The likely
respondents are the following: business
and other for-profit institutions.
The estimated total annual reporting
and/or recordkeeping burden is 2,700
hours.

February 9, 2009

The estimated annual burden per respondent/recordkeeper varies from 0.25
hours to 1 hour, depending on individual
circumstances, with an estimated average
of 0.5 hours. The estimated number of respondents is 5,400. The estimated annual
frequency of responses is on occasion.

SECTION 10. EFFECTIVE DATE
This revenue procedure is effective January 23, 2009.
SECTION 11. DRAFTING
INFORMATION

fice of Associate Chief Counsel (Income
Tax & Accounting). For further information regarding this revenue procedure,
contact Mr. Rodrick at (202) 622–4930
(not a toll-free call).

The principal author of this revenue
procedure is Jeffrey T. Rodrick of the Of-

February 9, 2009

458

2009–6 I.R.B.