§199A Signed Safe Harbor Statement Must be Attached as a PDF to an E-Filed Return

If a taxpayer is electing making the safe harbor election for a real estate enterprise under Notice 2019-07 and electronically filing his/her return, a signed copy of the election must be submitted as a PDF attachment to e-filed return reports Tax Notes Today.  In an article in the March 11, 2019 edition of Tax Notes Today, Eric Yauch reports that IRS Office of Chief Counsel Attorney Robert Alinsky confirmed that requirement while speaking at the Federal Bar Association Conference in Washington.[1]

Notice 2019-07, issued concurrently with the final regulations under IRC §199A, provided a draft revenue procedure that allowed a safe harbor election to treat a real estate enterprise as a trade or business which would qualify for the deduction of a qualified business income amount under IRC §199A.  The Notice provided that taxpayers may rely on the proposed revenue procedure until the final revenue procedure is issued by the IRS.

Section 3.06 of the draft revenue procedure provides for the following procedural requirements to apply the safe harbor:

A taxpayer or RPE must include a statement attached to the return on which it claims the section 199A deduction or passes through section 199A information that the requirements in Section 3.03 of this revenue procedure have been satisfied. The statement must be signed by the taxpayer, or an authorized representative of an eligible taxpayer or RPE, which states: “Under penalties of perjury, I (we) declare that I (we) have examined the statement, and, to the best of my (our) knowledge and belief, the statement contains all the relevant facts relating to the revenue procedure, and such facts are true, correct, and complete.” The individual or individuals who sign must have personal knowledge of the facts and circumstances related to the statement.

The article reports the IRS has received comments on how to handle this signature requirements on e-filed returns.  On online tax professional discussion forums some had wondered the electronic signature on the e-filed return itself would suffice to meet this requirement.  Mr. Alinsky clarified this point, noting that the statement itself must be signed and then attached to the return.

As the article states:

“The rule is that it has be a separate, signed statement attached to the return,” Alinsky said. “So, if you are e-filing, you have to have a separate statement and PDF it and attach it to the return.”[2]

[1] Eric Yauch, “IRS Open to Additional Guidance on Portions of 199A,” Tax Notes Today, https://www.taxnotes.com/tax-notes-today/partnerships-and-other-passthrough-entities/irs-open-additional-guidance-portions-199a/2019/03/11/29737 (subscription required), 2019 TNT 47-15

[2] Ibid.