Part III. Administrative, Procedural, and Miscellaneous

.05 Section 172(b)(1)(H)(i), as amended by the Act, permits a taxpayer to elect to carry back its applicable NOL to 3, 4, or 5 years preceding the taxable year of the applicable NOL. This election is not limited to an ESB. Section 172(b)(1)(H)(ii) provides that the term “applicable net operating loss” means the taxpayer’s NOL for a taxable year ending after December 31, 2007, and beginning before January 1, 2010.

.06 Section 172(b)(1)(H)(iii) provides that the election under § 172(b)(1)(H) is required to be made in a manner prescribed by the Secretary, and must be made by the due date (including extensions) for filing the return for the taxpayer’s last taxable year beginning in 2009. The election is irrevocable and, in general, may be made for only one taxable year. However, § 172(b)(1)(H)(v) allows a taxpayer that made or makes an ARRA election also to make an election under § 172(b)(1)(H) for another taxable year.

.07 Section 172(b)(1)(H)(iv) limits the amount of an NOL that a taxpayer elects under § 172(b)(1)(H)(i) to carry back to the 5 ^th taxable year preceding the taxable year of the loss to 50 percent of the taxpayer’s taxable income for the carryback taxable year. The taxable income for the carryback taxable year is computed without regard to the NOL for the loss year or any taxable year thereafter. The excess of the amount of the loss over 50 percent of the taxable income, as determined under § 172(b)(2), for the carryback taxable year is carried to later taxable years. For the carryback of an alternative tax NOL to the 5 ^th taxable year preceding the taxable year of the loss, the 50 percent limitation is applied separately based on the alternative minimum taxable income. The § 172(b)(1)(H)(iv) limitation does not apply to an NOL carryback under the ARRA election.

.08 Section 13(e)(4) of the Act provides that a taxpayer that has elected under §§ 172(b)(3) or 810(b)(3) to forgo a carryback for a loss for a taxable year ending before the date of enactment of the Act (November 6, 2009) may revoke that election before the due date (including extensions) for filing the return for the taxpayer’s last taxable year beginning in 2009. An application under § 6411(a) for

26 CFR 601.105: Examination of returns and claims for refund, credit or abatement; determination of cor- rect tax liability. (Also Part I, §§ 172, 6411.)

Rev. Proc. 2009–52