26 CFR § 1.1502-21T - Net operating losses (temporary).

§ 1.1502-21T Net operating losses (temporary).

(a) For further guidance, see § 1.1502-21(a).

(b) For further guidance, see § 1.1502-21(b) introductory text through (b)(2).

(1)-(2) [Reserved]

(3) For further guidance, see § 1.1502-21(b)(3) introductory text through (b)(3)(ii)(B).

(i) [Reserved]

(ii)

(A)-(B) [Reserved]

(C) Waiver of carryback period for losses in taxable years to which statutorily amended carryback rules apply -

(1) In general. An acquiring group may make either (but not both) an amended statute split-waiver election or an extended split-waiver election with respect to a particular amended carryback CNOL. (See paragraph (b)(3)(ii)(C)(2) of this section for definitions of terms used in this paragraph (b)(3)(ii)(C) and paragraph (b)(3)(ii)(D) of this section.) These elections are available only if the statutory amendment to the carryback period referred to in paragraph (b)(3)(ii)(C)(2)(iv) of this section occurs after the date of acquisition of an acquired member. A separate election is available for each taxable year to which amended carryback rules apply. An acquiring group may make an amended statute split-waiver election or an extended split-waiver election only if the acquiring group, with regard to that election -

(i) Satisfies the requirements in paragraph (b)(3)(ii)(C)(3) of this section; and

(ii) Follows the procedures in paragraphs (b)(3)(ii)(C)(5) and (6) of this section, as relevant to that election.

(2) Definitions. The definitions provided in this paragraph (b)(3)(ii)(C)(2) apply for purposes of this paragraph (b)(3)(ii)(C) and paragraph (b)(3)(ii)(D) of this section.

(i) Acquired member. The term acquired member means a member of a consolidated group that joins another consolidated group.

(ii) Acquiring group. The term acquiring group means a consolidated group that has acquired a former member of another consolidated group (that is, an acquired member).

(iii) Amended carryback CNOL. The term amended carryback CNOL means the portion of a CNOL attributable to an acquired member (determined pursuant to § 1.1502-21(b)(2)(iv)(B)) arising in a taxable year to which amended carryback rules apply.

(iv) Amended carryback rules. The term amended carryback rules means the rules of section 172 of the Code after amendment by statute to extend the carryback period for NOLs attributable to an acquired member (determined pursuant to § 1.1502-21(b)(2)(iv)(B)).

(v) Amended statute split-waiver election. The term amended statute split-waiver election means, with respect to any amended carryback CNOL, an irrevocable election made by an acquiring group to relinquish the portion of the carryback period (including the default carryback period and the extended carryback period) for that loss during which an acquired member was a member of any former group.

(vi) Amended statute split-waiver election statement. The term amended statute split-waiver election statement has the meaning provided in paragraph (b)(3)(ii)(C)(5)(i) of this section.

(vii) Default carryback period. The term default carryback period means the NOL carryback period existing at the time the acquiring group acquired the acquired member, before the applicability of amended carryback rules.

(viii) Extended carryback period. The term extended carryback period means the additional taxable years added to a default carryback period by any amended carryback rules.

(ix) Extended split-waiver election. The term extended split-waiver election means, with respect to any amended carryback CNOL, an irrevocable election made by an acquiring group to relinquish solely the portion of the extended carryback period (and no part of the default carryback period) for that loss during which an acquired member was a member of any former group.

(x) Extended split-waiver election statement. The term extended split-waiver election statement has the meaning provided in paragraph (b)(3)(ii)(C)(5)(ii) of this section.

(xi) Former group. The term former group means a consolidated group of which an acquired member previously was a member.

(3) Conditions for making an amended statute split-waiver election or an extended split-waiver election. An acquiring group may make an amended statute split-waiver election or an extended split-waiver election (but not both) with respect to an amended carryback CNOL only if -

(i) The acquiring group has not filed a valid election described in § 1.1502-21(b)(3)(ii)(B) with respect to the acquired member on or before the effective date of amended carryback rules;

(ii) The acquiring group has not filed a valid election described in section 172(b)(3) and § 1.1502-21(b)(3)(i) with respect to a CNOL of the acquiring group from which the amended carryback CNOL is attributed to the acquired member;

(iii) Any other corporation joining the acquiring group that was affiliated with the acquired member immediately before the acquired member joined the acquiring group is included in the waiver; and

(iv) A former group does not claim any carryback (as provided in paragraph (b)(3)(ii)(C)(4) of this section) to any taxable year in the carryback period (in the case of an amended statute split-waiver election) or in the extended carryback period (in the case of an extended split-waiver election) with respect to the amended carryback CNOL on a return or other filing filed on or before the date the acquiring group files the election.

(4) Claim for a carryback. For purposes of paragraph (b)(3)(ii)(C)(3)(iv) of this section, a carryback is claimed with respect to an amended carryback CNOL if there is a claim for refund, an amended return, an application for a tentative carryback adjustment, or any other filing that claims the benefit of the NOL in a taxable year prior to the taxable year of the loss, whether or not subsequently revoked in favor of a claim based on the period provided for in the amended carryback rules.

(5) Procedures for making an amended statute split-waiver election or an extended split-waiver election -

(i) Amended statute split-waiver election. An amended statute split-waiver election must be made in a separate statement entitled “THIS IS AN ELECTION UNDER SECTION 1.1502-21T(b)(3)(ii)(C)(1) TO WAIVE THE PRE-[insert first day of the first taxable year for which the acquired member was a member of the acquiring group] CARRYBACK PERIOD FOR THE CNOLS ATTRIBUTABLE TO THE [insert taxable year of losses] TAXABLE YEAR(S) OF [insert names and employer identification numbers of members]” (amended statute split-waiver election statement). This statement must be filed as provided in paragraph (b)(3)(ii)(C)(6) of this section.

(ii) Extended split-waiver election. An extended split-waiver election must be made in a separate statement entitled “THIS IS AN ELECTION UNDER SECTION 1.1502-21T(b)(3)(iii)(C)(1) TO WAIVE THE PRE-[insert first day of the first taxable year for which the acquired member was a member of the acquiring group] EXTENDED CARRYBACK PERIOD FOR THE CNOLS ATTRIBUTABLE TO THE [insert taxable year of losses] TAXABLE YEAR(S) OF [insert names and employer identification numbers of members]” (extended split-waiver election statement). This statement must be filed as provided in paragraph (b)(3)(ii)(C)(6) of this section.

(6) Time and manner for filing statement -

(i) In general. Except as otherwise provided in paragraph (b)(3)(ii)(C)(6)(ii) or (iii) of this section, an amended statute split-waiver election statement or extended split-waiver election statement must be filed with the acquiring group's timely filed consolidated return (including extensions) for the year during which the amended carryback CNOL is incurred.

(ii) Amended returns. This paragraph (b)(3)(ii)(C)(6)(ii) applies if the date of the filing required under paragraph (b)(3)(ii)(C)(6)(i) of this section is not at least 150 days after the date of the statutory amendment to the carryback period referred to in paragraph (b)(3)(ii)(C)(2)(iv) of this section. Under this paragraph (b)(3)(ii)(C)(6)(ii), an amended statute split-waiver election statement or extended split-waiver election statement may be attached to an amended return filed by the date that is 150 days after the date of the statutory amendment referred to in paragraph (b)(3)(ii)(C)(2)(iv) of this section.

(iii) Certain taxable years beginning before January 1, 2021. This paragraph (b)(3)(ii)(C)(6)(iii) applies to taxable years beginning before January 1, 2021, for which the date of the filing required under paragraph (b)(3)(ii)(C)(6)(i) of this section precedes November 30, 2020. Under this paragraph (b)(3)(ii)(C)(6)(iii), an amended statute split-waiver election statement or extended split-waiver election statement may be attached to an amended return filed by November 30, 2020.

(D) Examples. The following examples illustrate the rules of paragraph (b)(3)(ii)(C) of this section. For purposes of these examples: All affiliated groups file consolidated returns; all corporations are includible corporations that have calendar taxable years; each of P, X, and T is a corporation having one class of stock outstanding; each of P and X is the common parent of a consolidated group (P Group and X Group, respectively); neither the P Group nor the X Group includes an insolvent financial institution or an insurance company; no NOL is a farming loss; there are no other relevant NOL carrybacks to the X Group's consolidated taxable years; except as otherwise stated, the X Group has sufficient consolidated taxable income determined under § 1.1502-11 (CTI) to absorb the stated NOL carryback by T; T has sufficient SRLY register income within the X Group to absorb the stated NOL carryback by T; all transactions occur between unrelated parties; and the facts set forth the only relevant transactions.

(1) Example 1: Computation and absorption of amended carrybacks -

(i) Facts. In Year 1, T became a member of the X Group. On the last day of Year 5, P acquired all the stock of T from X. At the time of P's acquisition of T stock, the default carryback period was zero taxable years. The P Group did not make an irrevocable split-waiver election under § 1.1502-21(b)(3)(ii)(B) to relinquish, with respect to all CNOLs attributable to T while a member of the P Group, the portion of the carryback period for which T was a member of the X Group (that is, a former group). In Year 7, the P Group sustained a $1,000 CNOL, $600 of which was attributable to T pursuant to § 1.1502-21(b)(2)(iv)(B). In that year, P did not make an irrevocable general waiver election under section 172(b)(3) and § 1.1502-21(b)(3)(i) with respect to the $1,000 CNOL when the P Group filed its consolidated return for Year 7. In Year 8, legislation was enacted that amended section 172 to require a carryback period of five years for NOLs arising in a taxable year beginning after Year 5 and before Year 9.

(ii) Analysis. As a result of the amended carryback rules enacted in Year 8, the P Group's $1,000 CNOL in Year 7 must be carried back to Year 2. Therefore, T's $600 attributed portion of the P Group's Year 7 CNOL (that is, T's amended carryback CNOL) must be carried back to taxable years of the X Group. See §§ 1.1502-21(b)(1) and 1.1502-21(b)(2)(i). To the extent T's amended carryback CNOL is not absorbed in the X Group's Year 2 taxable year, the remaining portion must be carried to the X Group's Year 3, Year 4, and Year 5 taxable years, as appropriate. See id. Any remaining portion of T's amended carryback CNOL is carried to consolidated return years of the P Group. See § 1.1502-21(b)(1).

(2) Example 2: Amended statute split-waiver election -

(i) Facts. The facts are the same as in paragraph (b)(3)(ii)(D)(1)(i) of this section (Example 1), except that, following the change in statutory carryback period in Year 8, the P Group made a valid amended statute split-waiver election under paragraph (b)(3)(ii)(C) of this section to relinquish solely the carryback of T's amended carryback CNOL.

(ii) Analysis. Because the P Group made a valid amended statute split-waiver election, T's amended carryback CNOL is not eligible to be carried back to any taxable years of the X Group (that is, a former group). However, the amended statute split-waiver election does not prevent T's Year 7 amended carryback CNOL from being carried back to years of the P group (that is, the acquiring group) during which T was a member. See paragraph (b)(3)(ii)(C)(2)(v) of this section. As a result, the entire amount of T's amended carryback CNOL is eligible to be carried back to taxable Year 6 of the P Group. Any remaining CNOL may then be carried over within the P Group. See § 1.1502-21(b)(1).

(3) Example 3: Computation and absorption of extended carrybacks -

(i) Facts. The facts are the same as in paragraph (b)(3)(ii)(D)(1)(i) of this section (Example 1), except that the X Group had $300 of CTI in Year 4 and $200 of CTI in Year 5 and, at the time of the P Group's acquisition of T, the default carryback period was two years. Therefore, T's $600 attributed portion of the P Group's Year 7 CNOL was required to be carried back to the X Group's Year 5 taxable year, and the X Group was able to offset $200 of CTI in Year 5.

(ii) Analysis. As a result of the amended carryback rules, the X Group must offset its $300 of CTI in Year 4 against T's amended carryback CNOL. See §§ 1.1502-21(b)(1) and (b)(2)(i). The remaining $100 ($600−$300−$200) of T's amended carryback CNOL is carried to taxable years of the P Group. See § 1.1502-21(b)(1).

(4) Example 4: Extended split-waiver election -

(i) Facts. The facts are the same as in paragraph (b)(3)(ii)(D)(3)(i) of this section (Example 3), except that, following the change in law in Year 8, the P Group made a valid extended split-waiver election under paragraph (b)(3)(ii)(C) of this section to relinquish the extended carryback period for T's amended carryback CNOL for years in which T was a member of the X Group.

(ii) Analysis. As a result of the P Group's extended split-waiver election, T's amended carryback CNOL is not eligible to be carried back to any portion of the extended carryback period (that is, any taxable year prior to Year 5). See paragraph (b)(3)(ii)(C)(2)(ix) of this section. As a result, the X Group absorbs $200 of T's $600 loss in Year 5, and the remaining $400 ($600−$200) is carried to taxable years of the P Group. See § 1.1502-21(b)(1).

(iii) For further guidance, see § 1.1502-21(b)(3)(iii).

(c) For further guidance, see § 1.1502-21(c) through (h)(8).

(d)-(g) [Reserved]

(h)

(1)-(8) [Reserved]

(9) Amended carryback rules -

(i) Applicability date. Paragraphs (b)(3)(ii)(C) and (D) of this section apply to any CNOLs arising in a taxable year ending after July 2, 2020. However, taxpayers may apply paragraphs (b)(3)(ii)(C) and (D) of this section to any CNOLs arising in a taxable year beginning after December 31, 2017.

(ii) Expiration date. The applicability of paragraphs (b)(3)(ii)(C) and (D) of this section will expire on July 3, 2023.

(i)-(j) [Reserved]

[T.D. 9900, 85 FR 40896, July 8, 2020; 85 FR 53162, Aug. 28, 2020]