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Regs., which states in pertinent part: “If specific facts have
changed since the due date for making the election that make the
election advantageous to the taxpayer, the IRS will not
ordinarily grant relief.” (Emphasis added.) Accordingly, the
relevant inquiry is whether allowing a late election gives the
taxpayer some advantage that was not available on the due date.
In the instant case, the only fact that changed after the due
date for making the election was the discovery of the
availability of the election itself. Petitioner conducted no
trading activities and incurred no further losses between the
time he should have filed the section 475(f) election and the
date he actually filed the election. If a late election is
allowed, petitioner will not be entitled to anything more than
that to which he would have been entitled had he timely made the
election. The allowance of a late election is consistent with
the preamble to the regulations.
The instant case is distinguishable from Lehrer v.
Commissioner, T.C. Memo. 2005-167. In that case, the taxpayers
sought to make a section 475(f) election for taxable years 1999,
2000, and 2001 in taxable year 2004. The taxpayers reported
$44,000 of capital gains on their 1999 return, $313,715 of short-
term capital losses on their 2000 tax return, and $397,079 of
short-term capital losses on their 2001 return. In 2004, the
taxpayers sought to make a section 475(f) election to escape the
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