SECTION 4. APPLICATION

.01 Time and manner of making the election under § 172(b)(1)(H) .

(1) In general . A taxpayer within the scope of this revenue procedure that has an applicable 2008 NOL may make the election under § 172(b)(1)(H) by following the procedure described in either section 4.01(2) or section 4.01(3) of this revenue procedure.

(2) Electing on original return . A taxpayer may make the election under § 172(b)(1)(H) by attaching a statement

the NOL for 3, 4, or 5 years. Although Forms 1045 and 1139 ordinarily are due within 12 months after the taxable year of the NOL, § 172(b)(1)(H)(iii) requires that the taxpayer elect a 3-, 4-, or 5-year carryback within 6 months after the due date (excluding extensions) of the return for the taxable year of the NOL. Thus, a taxpayer that seeks to make a timely § 172(b)(1)(H) election using Form 1045, Form 1139, or an amended return must file the form in advance of its ordinary due date.

.04 This revenue procedure also prescribes: (1) how a taxpayer elects a 3-, 4-, or 5-year carryback if the taxpayer previously filed an election to forgo an NOL carryback period; and (2) how a taxpayer elects a 3-, 4-, or 5-year carryback if the taxpayer is a partner of an ESB that is a partnership, a shareholder of an ESB that is an S corporation, or a sole proprietor.