Code of Federal Regulations Title 26. Internal Revenue § 26.1.121–5 Suspension of 5–year period for certain members of the uniformed services and Foreign Service

(a) In general. Under section 121(d)(9), a taxpayer who is serving (or whose spouse is serving) on qualified official extended duty as a member of the uniformed services or Foreign Service of the United States may elect to suspend the running of the 5–year period of ownership and use during such service but for not more than 10 years. The election does not suspend the running of the 5–year period for any period during which the running of the 5–year period with respect to any other property of the taxpayer is suspended by an election under section 121(d)(9).

(b) Manner of making election. The taxpayer makes the election under section 121(d)(9) and this section by filing a return for the taxable year of the sale or exchange of the taxpayer's principal residence that does not include the gain in the taxpayer's gross income.

(c) Application of election to closed years. A taxpayer who would otherwise qualify under §§ 1.121–1 through 1.121–4 to exclude gain from a sale or exchange of a principal residence on or after May 7, 1997, may elect to apply section 121(d)(9) and this section for any years for which a claim for refund is barred by operation of any law or rule of law by filing an amended return before November 11, 2004.

(d) Example. The provisions of this section are illustrated by the following example:

Example. B purchases a house in Virginia in 2003 that he uses as his principal residence for 3 years. For 8 years, from 2006 through 2014, B serves on qualified official extended duty as a member of the Foreign Service of the United States in Brazil. In 2015 B sells the house. B did not use the house as his principal residence for 2 of the 5 years preceding the sale. Under section 121(d)(9)and this section, however, B may elect to suspend the running of the 5–year period of ownership and use during his 8–year period of service with the Foreign Service in Brazil. If B makes the election, the 8–year period is not counted in determining whether B used the house for 2 of the 5 years preceding the sale. Therefore, B may exclude the gain from the sale of the house under section 121.

(e) Effective date. This section is applicable for sales and exchanges on or after May 7, 1997.