-12-
they are entitled to relief under section 9100 and the
corresponding regulations. We disagree. Petitioners and SPK did
not administratively seek extensions of time to file mark-to-
market elections pursuant to section 9100. They simply noted it
at the top of their Forms 3115.6 Neither did petitioners raise
the issue of section 9100 relief in the petition.
We find that neither petitioners nor SPK would be entitled
to relief under section 9100 even if they had requested section
9100 relief and raised it as an assignment of error in the
petition. Section 301.9100-3, Proced. & Admin. Regs., provides
administrative relief for late mark-to-market elections if
certain conditions are satisfied. The Commissioner grants
requests for relief under this section if the taxpayer can show
that the taxpayer acted reasonably and in good faith and the
grant of relief will not prejudice the interests of the
Government. Sec. 301.9100-3(a), Proced. & Admin. Regs.; see
Vines v. Commissioner, 126 T.C. 279 (2006).
A taxpayer is deemed not to have acted reasonably and in
good faith if the taxpayer uses hindsight in requesting relief.
6The notation at the top of petitioners’ and SPK’s Forms
3115, Application for Change in Accounting Method, indicates that
the Forms 3115 were filed “pursuant to section 301.9100-2.”
Relief under sec. 301.9100-2, Proced. & Admin. Regs., is
unavailable for extensions of time to file mark-to-market
elections under sec. 475(f) because it does not apply to
elections, like the mark-to-market election, that must be made by
the due date of the return without regard to extensions. Sec.
301.9100-2(b), Proced. & Admin. Regs.; Rev. Proc. 99-17, 1999-1
C.B. 503. Petitioners and SPK raised the issue of sec. 9100
relief in their ruling requests but did not further pursue sec.
9100 relief at the administrative level after they withdrew the
ruling requests.
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