Steven A. and Patricia A. Knish - Page 12

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          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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