rp-12-39.pdf

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Part III

Administrative, Procedural, and Miscellaneous

26 CFR 601.204: Changes in accounting periods and in methods of accounting.
(Also Part I, §§ 179D, 1.179D, 381, 1.381(c)(4)-1, 1.381(c)(5)-1, 446, 1.446-1)

Rev. Proc. 2012-39

SECTION 1. PURPOSE
This revenue procedure clarifies and modifies (i) Rev. Proc. 2011-14,
2011-1 C.B. 330; and (ii) Rev. Proc. 97-27, 1997-1 C.B. 680, as amplified and
modified by Rev. Proc. 2002-19, 2002-1 C.B. 696, as amplified and clarified by
Rev. Proc. 2002-54, 2002-2 C.B. 432, as modified by Rev. Proc. 2007-67, 2007-
2 C.B. 1072, as clarified and modified by Rev. Proc. 2009-39, 2009-2 C.B. 371,
and as clarified and modified by Rev. Proc. 2011-14. It modifies certain rules
applicable to a taxpayer that engages in a corporate reorganization or tax-free
liquidation described in § 381(a) of the Internal Revenue Code that occurs on or
after August 31, 2011. It also modifies section 3.09 of the APPENDIX of Rev.
Proc. 2011-14 regarding a change to the method of accounting described in Rev.
Proc. 2011-43, 2011-2 C.B. 326, for taxpayers in the business of transporting,
delivering, or selling electricity. Finally, it clarifies and modifies section 8.04 of
the APPENDIX of Rev. Proc. 2011-14 regarding a change in method of

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accounting for amounts paid or incurred for the installation of energy efficient
commercial building property under § 179D.
SECTION 2. BACKGROUND
.01 Rev. Proc. 97-27 provides the general procedures for a taxpayer to
obtain non-automatic consent from the Commissioner of Internal Revenue
(Commissioner) to change a method of accounting under § 446(e).
.02 Rev. Proc. 2011-14, issued in January 2011, provides the procedures
for a taxpayer to obtain automatic consent from the Commissioner for a change
in method of accounting that is described in the APPENDIX of Rev. Proc. 2011-
14. A taxpayer complying with all the applicable provisions of Rev. Proc. 2011-
14 obtains the consent of the Commissioner to change its method of accounting
under § 446(e).
.03 Section 4.02 of Rev. Proc. 2011-14 describes seven scope limitations
that preclude a taxpayer from obtaining automatic consent to change a method of
accounting under Rev. Proc. 2011-14. Except to the extent the scope limitations
are waived for a particular change in the APPENDIX of Rev. Proc. 2011-14,
these scope limitations apply even when the change in method of accounting is
described in the APPENDIX of Rev. Proc. 2011-14. Two of these scope
limitations preclude a taxpayer from using the automatic consent procedures in
Rev. Proc. 2011-14 to change its method of accounting for a taxable year (year
of change) in which (i) it engages in a transaction to which § 381(a) applies
(§ 381(a) transaction), or (ii) it ceases to engage in the trade or business to which
the change in method of accounting relates or terminates its existence. See

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sections 4.02(4) and (5) of Rev. Proc. 2011-14. A taxpayer that is precluded
from using the automatic consent procedures in Rev. Proc. 2011-14 to change its
method of accounting may request permission to change the method of
accounting using the provisions of Rev. Proc. 97-27 if the taxpayer is within the
scope of Rev. Proc. 97-27. See
section 4.03 of Rev. Proc. 2011-14.
.04 Section 6.03 of Rev. Proc. 2011-14 and section 6.01 of Rev. Proc. 97-
27 provide the rules for when a taxpayer under examination may use the
automatic change procedures in Rev. Proc. 2011-14 or the non-automatic
change procedures in Rev. Proc. 97-27, respectively, to request consent to
change a method of accounting.
.05 On August 1, 2011, the Treasury Department and the Internal
Revenue Service (Service) issued final regulations under §§ 381(c)(4) and
381(c)(5) in TD 9534, 76 Fed. Reg. 45673 (2011). These regulations provide
guidance regarding the method of accounting or combination of methods of
accounting an acquiring corporation must use following a distribution or transfer
to which § 381(a) and § 381(c)(4) or § 381(c)(5) apply and how to implement any
associated change in method of accounting. These regulations permit any party
to a § 381(a) transaction to request permission from the Commissioner under
§ 446(e) to change a method of accounting for the taxable year in which the
transaction occurs or is expected to occur. However, the regulations state that,
for the taxable year that includes the date of the § 381(a) transaction, the
Commissioner will not grant permission to change a method of accounting for
any separate and distinct trade or business of either party if the acquiring

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corporation will not operate that trade or business as a separate and distinct
trade or business after the date of the § 381(a) transaction, unless the requested
method is the method that the acquiring corporation must use for the transferred
or distributed items of that trade or business after the date of distribution or
transfer. See §§ 1.381(c)(4)-1(a)(5) and 1.381(c)(5)-1(a)(5). Sections
1.381(c)(4)-1(d)(2) and 1.381(c)(5)-1(d)(2) provide the procedures for requesting
permission under § 446(e) to change a method of accounting for a year of
change in which a § 381(a) transaction occurs or is expected to occur. Those
procedures state, in part, that the scope limitation relating to the final year of a
trade or business will not apply to a taxpayer that changes its method of
accounting in the final year of a trade or business that is terminated as the result
of a § 381(a) transaction. The regulations issued under §§ 1.381(c)(4) and
1.381(c)(5) in TD 9534 apply to corporate reorganizations or tax-free liquidations
described in § 381(a) that occur on or after August 31, 2011.
.06 The Service has decided to waive the scope limitation in Rev. Proc.
2011-14 that precludes a taxpayer from making an automatic accounting method
change for a taxable year in which the taxpayer engages in a § 381(a)
transaction. This revenue procedure modifies section 4.02(4) of Rev. Proc.
2011-14 to permit taxpayers to make otherwise qualifying automatic accounting
method changes in the year of the § 381(a) transaction. This revenue procedure
also modifies both Rev. Proc. 2011-14 and Rev. Proc. 97-27 to waive the scope
limitation that precludes taxpayers who are under examination from seeking

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consent to change to an accounting method other than the principal or carryover
method.
.07 Section 3.09 of the APPENDIX of Rev. Proc. 2011-14 allows
taxpayers in the business of transporting, delivering, or selling electricity to
change their method of accounting to the safe harbor method of accounting
described in Rev. Proc. 2011-43. The scope limitations of section 4.02 of Rev.
Proc. 2011-14 do not apply to an electric transmission or distribution company
that changes to the method of accounting provided in Rev. Proc. 2011-43 for its
first or second taxable year ending after December 30, 2010.
.08 The Service is aware that many electric transmission or distribution
companies have not had time to change their method of accounting to the safe
harbor method of accounting described in Rev. Proc. 2011-43. Accordingly, this
revenue procedure modifies section 3.09 of the APPENDIX of Rev. Proc. 2011-
14 to extend the waiver of scope limitations to the third taxable year ending after
December 30, 2010.
.09 Section 179D(a) allows a deduction to a taxpayer for part or all of the
cost of energy efficient commercial building property that the taxpayer places in
service in a taxable year. The amount of the deduction may not exceed the
excess (if any) of (i) the product of $1.80 and the square footage of the building,
over (ii) the aggregate amount of the § 179D deductions allowed with respect to
the building for all prior taxable years. If the energy efficient commercial building
property is installed on or in property owned by a Federal, State, or local
government or political subdivision thereof, § 179D permits the owner to allocate

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this deduction to the designer of the commercial building property. In Notice
2008-40, the Service provided procedures for owners of government buildings to
allocate the § 179D deduction to the designer.
.10 Section 8.04 of the APPENDIX of Rev. Proc. 2011-14 allows
taxpayers to change their method of accounting to deduct under § 179D amounts
paid or incurred for the installation of energy efficient commercial building
property, as defined in § 179D(c)(1). Section 8.04(4) of the APPENDIX requires
a taxpayer making this change to attach a certification to demonstrate the energy
efficient commercial building property has achieved the reduction in energy and
power costs necessary to qualify for the § 179D deduction. The additional filing
requirement also contains a provision that, in the case of a government-owned
building for which a designer has been allocated a deduction under § 179D, the
designer becomes the taxpayer for purposes of the deduction and must attach a
certification and an allocation from the owner of the building to the designer.
.11 Some taxpayers have interpreted section 8.04(4) of the APPENDIX of
Rev. Proc. 2011-14 to mean that designers may file a Form 3115 for a change in
method of accounting and make a § 481(a) adjustment for a § 179D deduction
allocated to the designer. However, a designer who takes a § 179D deduction is
making a permanent change in its income because, unlike the owner of the
property, the designer is not otherwise entitled to deduct the amount of the
§ 179D deduction by another method, for example, through depreciation.
Taxpayers may not use a change in method of accounting to make a permanent
change in income. Accordingly, this revenue procedure clarifies and modifies

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section 8.04 of the APPENDIX of Rev. Proc. 2011-14 to make clear that
designers may not use the automatic change in method of accounting provisions
of Rev. Proc. 2011-14 for § 179D deductions that are allocated to them.
Designers allocated a § 179D deduction for commercial building property placed
in service in a prior taxable year may file an amended return for the taxable year
in which the property was placed in service (if that taxable year is open) to claim
such § 179D deduction. This revenue procedure also modifies the filing
requirements in section 8.04 of the APPENDIX for the duplicate copy of the Form
3115.
SECTION 3. CHANGE IN METHOD OF ACCOUNTING
.01 Modification of Rev. Proc. 2011-14
.
(1) Modification of sections 4.02(1), (4) and (5)
. Sections 4.02(1), 4.02(4)
and 4.02(5) of Rev. Proc. 2011-14 are modified to read as follows:
(1) Under examination
. If, on the date the taxpayer (or if section
6.02(3)(b) of this revenue procedure applies, the designated shareholder) would
otherwise file a copy of the application with the national office, or if applicable,
with the Ogden office, (see
section 6.02(3) of this revenue procedure), the
taxpayer is under examination (see
section 3.08 of this revenue procedure),
except as provided in sections 6.03(2) (90-day window), 6.03(3) (120-day
window), 6.03(4) (consent of director), 6.03(5) (changes lacking audit protection),
6.03(6) (issue pending or change to use other than the principal or carryover
method), 6.04 (issue under consideration by an appeals office), and 6.05 (issue
under consideration by a federal court) of this revenue procedure.

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(4) Section 381(a) transaction. Except as otherwise provided in this
section 4.02(4), if the taxpayer engages in a transaction to which § 381(a)
applies (§ 381(a) transaction) within the proposed taxable year of change
(determined without regard to any potential closing of the year under
§ 381(b)(1)). All references to the regulations in sections 4.02(4)(a)(i) and
4.02(4)(a)(ii) refer to the regulations under §§ 381(c)(4) and 381(c)(5) that were
in effect prior to August 31, 2011, the effective date of TD 9534. All references to
the regulations in section 4.02(4)(b) refer to the regulations under §§ 381(c)(4)
and 381(c)(5) that are in effect as of August 31, 2011.
(a) Section 381(a) transaction occurring before August 31, 2011
.
(i) No differences in methods. An acquiring corporation in a
§ 381(a) transaction that occurred before August 31, 2011, may change its
method of accounting pursuant to this revenue procedure if the acquiring
corporation would be permitted to continue to use its prior method of accounting
under the rules of §§ 1.381(c)(4)-1(b)(1) and (3)(i) (taking into account the third
sentence of § 1.381(c)(4)-1(b)(4) relating to no prior method established by a
party to the transaction) or §§ 1.381(c)(5)-1(b)(1) and (3)(i) (taking into account
the second sentence of § 1.381(c)(5)-1(b)(4)(i) relating to no prior inventory
method established by a party to the transaction) because all of the parties to the
transaction used the same method of accounting on the date of distribution or
transfer. The change pursuant to this revenue procedure is ignored for purposes
of determining whether on the date of distribution or transfer the parties to the
transaction used the same methods of accounting under § 1.381(c)(4)-1(b) or

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§ 1.381(c)(5)-1(b), and thus §§ 1.381(c)(4)-1(b)(3)(ii) and (c) and §§ 1.381(c)(5)-
1(b)(3)(ii) and (c) will not apply.
(ii) Separate trades or businesses. An acquiring corporation in a
§ 381(a) transaction that occurred before August 31, 2011, may change pursuant
to this revenue procedure a method of accounting used by a trade or business
operated by such corporation if the trade or business would be permitted to
continue to use its prior method of accounting under the rules of § 1.381(c)(4)-
1(b)(2) or § 1.381(c)(5)-1(b)(2). The change pursuant to this revenue procedure
is ignored for purposes of determining whether on the date of distribution or
transfer the parties to the transaction used the same methods of accounting
under § 1.381(c)(4)-1(b) or § 1.381(c)(5)-1(b), and, thus §§ 1.381(c)(4)-1(b)(3)
and (c) and §§ 1.381(c)(5)-1(b)(3) and (c) will not apply.
(b) Section 381(a) transactions occurring on or after August 31, 2011
.
Any party to a § 381(a) transaction that occurs on or after August 31, 2011, may
change its method of accounting for the taxable year in which the § 381(a)
transaction occurs pursuant to this revenue procedure if the taxpayer is
requesting a change in method of accounting described in § 1.381(c)(4)-1(a)(4)
or (5) or § 1.381(c)(5)-1(a)(4) or (5).
(5) Final year of trade or business
. Except as otherwise provided in this
section 4.02(5), if, in the proposed year of change, a taxpayer requesting a
change in method of accounting ceases to engage in the trade or business to
which the change in method of accounting relates, as described in section
5.04(3)(c) of this revenue procedure, or terminates its existence. For purposes of

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this section 4.02(5), a taxpayer is treated as ceasing to engage in the trade or
business or terminating its existence without regard to whether the taxpayer's
change in method of accounting request would result in either a positive or
negative § 481(a) adjustment or be made on a cut-off basis.
This section 4.02(5) does not apply to a taxpayer that changes its method
of accounting in the final year of its trade or business that is terminated as the
result of a transaction to which § 381(a) applies that occurs on or after August
31, 2011.
(2) Modification of sections 6.03(1) and 6.03(6)
. Sections 6.03(1) and
6.03(6) of Rev. Proc. 2011-14 are modified to read as follows:
(1) In general. Except as otherwise provided in the APPENDIX of this
revenue procedure (see, for example, section 2.01 of the APPENDIX of this
revenue procedure), a taxpayer that is under examination (as provided in section
3.08 of this revenue procedure) may file an application to change a method of
accounting under this revenue procedure only if the taxpayer is within the
provisions of section 6.03(2) (90-day window), 6.03(3) (120-day window), 6.03(4)
(consent of director), 6.03(5) (changes lacking audit protection), 6.03(6) (issue
pending or change to use other than the principal or carryover method), 6.04
(issue under consideration by an appeals office), or 6.05 (issue under
consideration by a federal court) of this revenue procedure. A taxpayer (or if
section 6.02(3)(b) of this revenue procedure applies, the designated shareholder)
that files an application beyond the time periods provided in the 90-day window
and 120-day window is not eligible for the automatic extension of time and will

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not be granted an extension of time under § 301.9100, except in unusual and
compelling circumstances.
(6) Issue pending or change to use other than the principal or carryover
method.
(a) Issue pending. A taxpayer that is under examination with respect to
any income tax issue may request to change a method of accounting if the
method of accounting to be changed is an issue pending for any taxable year
under examination. However, the audit protection provisions of section 7 of this
revenue procedure do not apply to a taxpayer changing its method of accounting
pursuant to this section 6.03(6)(a). For purposes of this section 6.03(6)(a), an
issue is pending for a taxable year under examination if the Service has given the
taxpayer (or if section 6.02(3)(b) of this revenue procedure applies, any
controlling domestic shareholder of a CFC or 10/50 corporation) written
notification indicating an adjustment is being made or will be proposed with
respect to the taxpayer’s method of accounting. This notification by the Service
may result from an inquiry by the Joint Committee on Taxation. This notification
normally will occur after the Service or the Joint Committee on Taxation has
gathered information sufficient to determine that an adjustment is appropriate
and justified, although the exact amount of the adjustment may not yet be
determined. See section 6.02(3)(c) of this revenue procedure for more
information regarding the requirement to file a copy of the application with the
examining agent.

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(b) Change to use other than the principal or carryover method. Any
party to a transaction to which § 381(a) applies that is under examination with
respect to any income tax issue may request to change to a method of
accounting described in § 1.381(c)(4)-1(a)(4) or (5) or § 1.381(c)(5)-1(a)(4) or (5)
(as in effect as of August 31, 2011) and the APPENDIX of this revenue
procedure for the taxable year (year of change) in which the § 381(a) transaction
occurs or is expected to occur. However, if, on the date the party (or if section
6.02(3)(b) of this revenue procedure applies, the designated shareholder) files a
copy of the application, the method of accounting to be changed is an issue
under consideration (see
section 3.09(1) of this revenue procedure) or an issue
the examining agent(s) has placed in suspense, the audit protection provisions of
section 7 of this revenue procedure do not apply to the party's change in method
of accounting requested pursuant to this section 6.03(6)(b). See section
6.02(3)(c) of this revenue procedure for more information regarding the
requirement to file a copy of the application with the examining agent.
(3) Change to section 3.09 of the APPENDIX, Method of Accounting
under Rev. Proc. 2011-43 for taxpayers in the business of transporting,
delivering, or selling electricity. Section 3.09(2) of the APPENDIX of Rev. Proc.
2011-14 is modified to read as follows:
(2) Waiver of scope limitations
. The scope limitations in section 4.02 of
this revenue procedure do not apply to an electric transmission or distribution
company that changes to the method of accounting provided in Rev. Proc. 2011-
43 for its first, second, or third taxable year ending after December 30, 2010.

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(4) Change to section 8.04 of the APPENDIX, Elective expensing
provisions (§ 179D). Section 8.04 of the APPENDIX of Rev. Proc. 2011-14 is
clarified and modified to read as follows:
.04 Deduction for Energy Efficient Commercial Buildings (§ 179D)
.
(1) Description of change
. This change applies to taxpayers that want to
change their method of accounting to deduct under § 179D amounts paid or
incurred for the installation of energy efficient commercial building property as
defined in § 179D(c)(1). The deduction for energy efficient commercial building
property is subject to the limits of § 179D(b) and must be claimed in the taxable
year in which the property is placed in service. The basis of the energy efficient
commercial building property is reduced by the amount of the § 179D deduction
taken and the remaining basis of the energy efficient commercial building
property is depreciated over its recovery period.
(2) Applicability
. This change applies to taxpayers that place in service
property for which a deduction is allowed under § 179D(a).
(3) Inapplicability
. This change does not apply to a designer to whom the
owner of a government building allocates the § 179D deduction.
(4) Manner of making change.
A taxpayer making this change must
attach to its Form 3115 a statement with a detailed description of the tax
treatment of the property under the taxpayer’s present and proposed methods of
accounting.
(5) Certification requirement
. In addition to the statement required by
section 8.04(4) of the APPENDIX of this revenue procedure (Rev. Proc. 2011-

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14), a taxpayer making this change must attach a certification as required by
section 4 of Notice 2006-52, 2006-1 C.B. 1175, or section 5 of Notice 2008-40,
2008-14 I.R.B. 725, to demonstrate the energy efficient commercial building
property has achieved the reduction in energy and power costs or in lighting
power density necessary to qualify for the § 179D deduction.
(6) Ogden copy of Form 3115 required in lieu of national office copy. A
taxpayer changing its method of accounting under section 8.04 of this
APPENDIX must file a signed copy of its completed Form 3115 with the IRS in
Ogden, UT (Ogden copy), in lieu of filing the national office copy, no earlier than
the first day of the year of change and no later than the date the taxpayer files
the original Form 3115 with its federal income tax return for the year of change.
See
section 6.02(3)(a)(ii)(B) (providing the general rules) and section 6.02(7)(b)
(providing the mailing address) of this revenue procedure.
(7) No ruling on qualification. The consent granted under this revenue
procedure for this change is not a determination by the Commissioner that the
taxpayer qualifies for a deduction under section 179D. The director will ascertain
whether the taxpayer qualifies for a deduction under section 179D (including a
review of the required certifications).
(8) Designated automatic accounting method change number
. The
designated automatic accounting method change number for a change in method
of accounting under section 8.04 of this APPENDIX is “152.” See section 6.02(4)
of this revenue procedure.

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(9) Contact information. For further information regarding a change under
this section, contact Jennifer Bernardini at 202-622-3110 (not a toll-free call).
.02 Modification of Rev. Proc. 97-27. Sections 6.01(1) and 6.01(5) of
Rev. Proc. 97-27 are modified to read as follows:
(1) In general. A taxpayer that is under examination may not file a Form
3115 to request a change in accounting method under this revenue procedure,
except as provided in sections 6.01(2) (90-day window), 6.01(3) (120-day
window), 6.01(4) (director consent), and 6.01(5) (issue pending or change to use
other than the principal or carryover method). A taxpayer that files a Form 3115
beyond the time periods provided in the 90-day window and 120-day window will
not be granted an extension of time to file under § 301.9100, except in unusual
and compelling circumstances.
(5) Issue pending or change to use other than the principal or carryover
method.
(a) Issue pending
. A taxpayer that is under examination with
respect to any income tax issue may request to change a method of accounting if
the method of accounting to be changed is an issue pending for any taxable year
under examination. However, the audit protection provisions of section 9.01 of
this revenue procedure do not apply to a taxpayer changing its method of
accounting pursuant to this section 6.01(5)(a). For purposes of this section
6.01(5)(a), an issue is pending for a taxable year under examination if the
Service has given the taxpayer (or if section 3.02 of Rev. Proc. 2009-39 applies,
any controlling domestic shareholder of a CFC or 10/50 corporation) written

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notification indicating an adjustment is being made or will be proposed with
respect to the taxpayer’s method of accounting. This notification by the Service
may result from an inquiry by the Joint Committee on Taxation. This notification
normally will occur after the Service or the Joint Committee on Taxation has
gathered information sufficient to determine that an adjustment is appropriate
and justified, although the exact amount of the adjustment may not yet be
determined. The taxpayer requesting to change a method of accounting under
this section 6.01(5)(a) must provide a copy of the Form 3115 to the examining
agent(s) at the same time it files the original Form 3115 with the national office.
(b) Change to use other than the principal or carryover method
.
Any party to a transaction to which § 381(a) applies that is under
examination with respect to any income tax issue may request to change to a
method of accounting described in § 1.381(c)(4)-1(a)(4) or (5) or § 1.381(c)(5)-
1(a)(4) or (5) (as in effect as of August 31, 2011) for the taxable year (year of
change) in which the § 381(a) transaction occurs or is expected to occur.
However, if, on the date the party (or if section 3.02 of Rev. Proc. 2009-39
applies, the designated shareholder) files the Form 3115, the method of
accounting to be changed is an issue under consideration (see
section 3.08 of
this revenue procedure) or an issue the examining agent(s) has placed in
suspense, the audit protection provisions of section 9.01 of this revenue
procedure do not apply to the party's request to change its method of accounting
pursuant to this section 6.01(5)(b). The party requesting to change a method of
accounting under this section 6.01(5)(b) must provide a copy of the Form 3115 to

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the examining agent(s) at the same time it files the original Form 3115 with the
national office.
SECTION 4. LIMITATION OF CHANGE IN METHOD OF ACCOUNTING
This revenue procedure does not modify, amend, or in any other way
alter, any change to the principal method to which § 1.381(c)(4)-1(d)(1) or
1.381(c)(5)-1(d)(1) applies.
SECTION 5. EFFECT ON OTHER DOCUMENTS
Rev. Proc. 2011-14 is clarified and modified. Rev. Proc. 97-27 is
modified.
SECTION 6. EFFECTIVE DATE
This revenue procedure is effective for Forms 3115 filed on or after
[INSERT DATE THIS REVENUE PROCEDURE IS RELEASED TO THE TAX
SERVICES]. Further, a taxpayer that, on or after August 31, 2011, engaged in a
transaction to which § 381(a) applies within the proposed year of change may
choose to apply sections 3.01(1), 3.01(2) and 3.02 of this revenue procedure
(modifying sections 4.02(1), 4.02(4), 4.02(5), 6.03(1), and 6.03(6) of Rev. Proc.
2011-14 and sections 6.01(1) and 6.01(5) of Rev. Proc. 97-27) to a Form 3115
filed prior to, and pending with the national office on, [INSERT DATE THIS
REVENUE PROCEDURE IS RELEASED TO THE TAX SERVICES].
DRAFTING INFORMATION
The principal author of this revenue procedure is Cheryl Oseekey, of the
Office of Associate Chief Counsel (Income Tax and Accounting). For further

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information regarding this revenue procedure, contact Ms. Oseekey on (202)
622-4970 (not a toll-free call).