Limitations period, listed transactions not disclosed under section 6011

Listed transactions not disclosed under section 6011

The Treasury Department and IRS today released for publication in the Federal Register final regulations (T.D. 9718) concerning the exception to the standard three-year limitations period for assessments, as provided under section 6501(c)(10), for listed transactions that a taxpayer failed to disclose as required under section 6011.

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The final regulations [PDF 218 KB] adopt rules that were proposed in 2009, with four “substantive clarifications.”

  • The first concerns the interaction of the one-year limitations period on assessment after disclosure of a listed transaction and the general three-year limitations period. A sentence has been added to clarify that in no case will the limitations period be shorter than that period would have been without the one-year period.
  • The second clarifies when a disclosure will be considered a disclosure by a material advisor, so that the one-year limitations period will begin.
  • The third clarifies that information not furnished to the IRS in response to a section 6112 request will not trigger the one-year period, even if provided by a material advisor, unless the information is furnished to the IRS Office of Tax Shelter Analysis (OTSA) in instances when material advisors are liquidated or dissolved.
  • The fourth clarifies that if a material advisor provides certain required information but not information identifying the taxpayer as a person who entered into a listed transaction, the requirements of section 6501(c)(10)(B) are not met.


Section 6501(a) provides that in general if a return is filed, the IRS must make an assessment of tax with respect to that return within three years from the later of: (1) the date the return was filed or (2) the original due date of the return.

One of the exceptions to the general three-year rule is provided by section 6501(c)(10), which was added to the Code by the American Jobs Creation Act of 2004. That provision provides that if a taxpayer fails to disclose a listed transaction as required under section 6011, the time for making a tax assessment with respect to that transaction will end no earlier than one year after the earlier of: (1) the date on which the taxpayer furnishes the information required under section 6011, or (2) the date that a material advisor furnishes to the Treasury Secretary, upon written request, the information required under section 6112 with respect to the taxpayer related to the listed transaction.

If neither the taxpayer nor a material advisor furnishes the required information, the period of limitations on assessment will remain open, and the tax with respect to the listed transaction may be assessed at any time.

Rev. Proc. 2005-26 provided interim guidance on section 6501(c)(10) and set forth how taxpayers and material advisors are to disclose listed transactions that were not properly disclosed under section 6011 in order to trigger the one-year period under section 6501(c)(10).

In 2009, proposed regulations state that taxpayers may continue to rely on Rev. Proc. 2015-26 until temporary or final regulations are issued.

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