Rev. Rul. 67-310

Advice has been requested as to whether an extension of time to make an election under section 1038 of the Internal Revenue Code of 1954 may be granted.

Section 1038 of the Code, relating to certain reacquisitions of real property, was added by section 2(a) of Public Law 88-570, September 2, 1964, C.B. 1964-2, 647.

Section 2(c) of the public law provided that section 1038 of the Code would apply to taxable years beginning after December 31, 1957, if such taxable years were not barred by operation of any law or rule of law, and an election within one year after September 2, 1964, was made in such form and manner as the Secretary of the Treasury or his delegate shall prescribe by regulations. This effective date was not made a part of section 1038 of the Code.

Income Tax Regulations under section 1038 of the Code have been adopted as Treasury Decision 6916, approved April 7, 1967, C.B. 1967-1, 198. Section 1.1038-3(b) of the regulations provides that an election to have the provisions of section 1038 of the Code apply to reacquisitions of real property occurring in taxable years beginning after December 31, 1957, and before September 3, 1964, shall be made by filing on or before September 3, 1965, a return, an amended return, or a claim for refund, whichever is proper.

Section 1.9100-1 of the regulations permits the Commissioner in his discretion to grant a reasonable extension of the time fixed by certain regulations for the making of an election provided the time for making such election or application is not expressly prescribed by law.

Accordingly, since Public Law 88-570, enacting section 1038 of the Code, explicitly states that `An election under this paragraph shall be made within one year after the date of the enactment of this Act * * *' section 1.9100-1 of the regulations precludes a discretionary extension of time for the making of the election under that section of the Code.