(a) FIRREA effective date. Section 597, as amended by section 1401 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (Public Law 101-73, 103 Stat 183 (1989)) (FIRREA) is generally effective for any FFA received or accrued by an Institution on or after May 10, 1989, and for any transaction in connection with which such FFA is provided, unless the FFA is provided in connection with an acquisition occurring prior to May 10, 1989. See §1.597-8 for rules regarding FFA received or accrued on or after May 10, 1989, that relates to an acquisition that occurred before May 10, 1989.

(b) Applicability date of §§1.597-1 through 1.597-6. Sections 1.597-1 through 1.597-6 apply on or after October 19, 2017, except with respect to FFA provided pursuant to a written agreement that is binding before October 19, 2017, and that continues to be binding at all times after such date, in which case §§1.597-1 through 1.597-6 as contained in 26 CFR part 1, revised April 1, 2017, will continue to apply unless the taxpayer elects to apply §§1.597-1 through 1.597-6 on a retroactive basis pursuant to paragraph (c) of this section.

(c) Elective application to prior years and transactions—(1) In general. Except as limited in this paragraph (c), an election is available to apply §§1.597-1 through 1.597-6 to taxable years beginning prior to October 19, 2017. A consolidated group may elect to apply §§1.597-1 through 1.597-6 for all members of the group in all taxable years to which section 597, as amended by FIRREA, applies. The agent for the group, within the meaning of §1.1502-77, makes the election provided by this paragraph (c) for the consolidated group. An entity that is not a member of a consolidated group may elect to apply §§1.597-1 through 1.597-6 to all taxable years to which section 597, as amended by FIRREA, applies for which it is not a member of a consolidated group. The election provided by this paragraph (c) is irrevocable.

(2) Election unavailable if statute of limitations closed. The election provided by this paragraph (c) cannot be made if the period for assessment and collection of federal income tax has expired under the rules of section 6501 for any taxable year in which §§1.597-1 through 1.597-6 would affect the determination of the electing entity's or group's income, deductions, gain, loss, basis, or other items.

(3) Manner of making election. An Institution or consolidated group makes the election provided by this paragraph (c) by including a written statement as a part of the taxpayer's or consolidated group's first annual federal income tax return filed on or after October 19, 2017. The statement must contain the following legend at the top of the page: “THIS IS AN ELECTION UNDER §1.597-7(c),” and must contain the name, address, and taxpayer identification number of the taxpayer or agent for the group making the election. The statement must include a declaration that “TAXPAYER AGREES TO EXTEND THE STATUTE OF LIMITATIONS ON ASSESSMENT FOR THREE YEARS FROM THE DATE OF THE FILING OF THIS ELECTION UNDER §1.597-7(c), IF THE LIMITATIONS PERIOD WOULD EXPIRE EARLIER WITHOUT SUCH EXTENSION, FOR ANY ITEMS AFFECTED IN ANY TAXABLE YEAR BY THE FILING OF THIS ELECTION,” and a declaration that either “AMENDED RETURNS WILL BE FILED FOR ALL TAXABLE YEARS AFFECTED BY THE FILING OF THIS ELECTION WITHIN 180 DAYS OF MAKING THIS STATEMENT, UNLESS SUCH REQUIREMENT IS WAIVED IN WRITING BY THE INTERNAL REVENUE SERVICE” or “ALL RETURNS PREVIOUSLY FILED ARE CONSISTENT WITH THE PROVISIONS OF §§1.597-1 THROUGH 1.597-6.” An election with respect to a consolidated group must be made by the agent for the group, not an Agency, and applies to all members of the group.

[T.D. 9825, 82 FR 48629, Oct. 19, 2017]