Yes, you can get an extension of time to elect portability under certain conditions.
The availability of an extension depends on whether the estate has a filing requirement based on the filing threshold provided under § 6018(a). If the estate is required to file an estate tax return because the value of the gross estate and the amount of any adjusted taxable gifts exceed the basic exclusion amount, no extension of time to elect portability is available. In this case, the due date for the portability election is prescribed by statute, and the IRS does not have the authority to grant an extension.
However, if the estate is not required to file an estate tax return under § 6018(a) because the value of the gross estate and the amount of any adjusted taxable gifts are less than the filing threshold, the estate may use the simplified method provided in Revenue Procedure 2022-32 to obtain an extension of time to make the portability election. This simplified method allows the executor to file a complete and properly prepared Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, on or before the fifth anniversary of the decedent's date of death. The Form 706 must include a notation at the top stating that it is "FILED PURSUANT TO REV. PROC. 2022-32 TO ELECT PORTABILITY UNDER § 2010(c)(5)(A)." No user fee is required for this submission.
If the estate does not qualify for the simplified method under Revenue Procedure 2022-32, the executor may request an extension of time to make the portability election by requesting a letter ruling under the provisions of § 301.9100-3. This request must demonstrate that the taxpayer acted reasonably and in good faith and that granting relief will not prejudice the interests of the government. The IRS has discretionary authority to grant such an extension if these conditions are met.
In summary, an extension of time to elect portability is available if the estate is not required to file an estate tax return under § 6018(a) and the executor follows the procedures outlined in Revenue Procedure 2022-32 or requests a letter ruling under § 301.9100-3.
Sources:
Rev. Proc. 2022-32
§ 2010. Unified credit against estate tax
§ 6018. Estate tax returns
PLR 201734008
PLR 201633026
PLR 201642023
