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 may make the election under § 172(b)(1)(H) or § 810(b)(4) by following the procedure described in either section 4.01(3) or section 4.01(4) of this revenue procedure. The procedures under this revenue procedure that apply to NOLs and the election under § 172(b)(1)(H) also apply to a loss from operations of a life insurance company and the election under § 810(b)(4).

(2) Affiliated groups . For purposes of this revenue procedure, “taxpayer” includes an affiliated group filing a consolidated return, “applicable NOL” includes a consolidated net operating loss (CNOL), and the common parent of the group makes the § 172(b)(1)(H) election. See § 1.1502–21(b); § 1.1502–77(a). However, nothing in this revenue procedure permits a consolidated return group to otherwise make or revoke a carryback waiver election for the CNOL attributable to a member acquired from another group, described in § 1.1502–21(b)(3)(ii)(B). The

conditions under which this election may be permitted will be the subject of separate guidance.

(3) Electing on a federal income tax re- turn for the taxable year of the applicable NOL .

(a) What to file . A taxpayer may make the election under § 172(b)(1)(H) by attaching a statement to the taxpayer’s federal income tax return for the taxable year in which the applicable NOL arises. A taxpayer that filed its federal income tax return for the taxable year of the applicable NOL may make the election by attaching a statement to an amended return for the taxable year of the applicable NOL. The election statement must state that the taxpayer is electing to apply § 172(b)(1)(H) or § 810(b)(4) under Rev. Proc. 2009–52, and that the taxpayer is not a TARP recipient nor, in 2008 or 2009, an affiliate of a TARP recipient. The statement must specify the length of the NOL carryback period the taxpayer elects (3, 4, or 5 years).

(b) When to file . A taxpayer must file the election statement with the taxpayer’s original or amended federal income tax return for the taxable year of the applicable NOL on or before the due date (including extensions) for filing the return for the taxpayer’s last taxable year beginning in 2009. (c) Carryback applications or re- fund claims . A taxpayer that makes the § 172(b)(1)(H) election under this section 4.01(3) must attach a copy of the election statement to the taxpayer’s claim for tentative carryback adjustment (Form 1045, Application for Tentative Refund ; or Form 1139, Corporation Application for Tenta- tive Refund ) or amended return applying the applicable NOL to the carryback year. The due date for timely filing a claim for tentative carryback adjustment on Form 1045 or 1139 for a taxpayer that makes the § 172(b)(1)(H) election is extended to the due date (including extensions) for filing the return for the taxpayer’s last taxable year beginning in 2009.

(4) Electing on an appropriate form . In lieu of the procedures described in section 4.01(3) of this revenue procedure, a taxpayer may make the § 172(b)(1)(H) election on an appropriate form under this section 4.01(4).

(a) What to file . (i) A taxpayer may make the § 172(b)(1)(H) election by attaching an

December 7, 2009 745 2009–49 I.R.B.

begins on the date the taxpayer files the amended application.

.03 Revocation of the election to waive NOL carryback period . A taxpayer within the scope of this revenue procedure that previously elected under § 172(b)(3) or § 810(b)(3) to forgo the carryback period for an applicable NOL for a taxable year ending before November 6, 2009, may revoke that election and make the election under § 172(b)(1)(H). Any revocation of the election to forgo the NOL carryback period also will apply to a carryback of any alternative tax NOL for the same taxable year. The taxpayer may make the revocation and the election by following the procedures under section 4.01(3) or (4) of this revenue procedure. The election statement must state that the taxpayer is revoking an NOL (or loss from operations) carryback waiver and electing to apply § 172(b)(1)(H) or § 810(b)(4) under Rev. Proc. 2009–52, and that the taxpayer is not a TARP recipient nor, in 2008 or 2009, an affiliate of a TARP recipient. The statement must specify the length of the NOL carryback period the taxpayer elects (3, 4, or 5 years). The taxpayer must file the revocation and the election under § 172(b)(1)(H) before the due date (including extensions) for filing the return for the taxpayer’s last taxable year beginning in 2009.