I guess today's announcement about accelerating the January dividend into December is a sign that AI thinks it's has enough tax basis E&P to make its 2012 dividends taxable as qualified dividends and not return of capital. I had forgotten that AI gave up its REIT status until it is able to utilize its NOL carryovers.
Sure they can re-elect. But they have to do so effective at the start of a year, not in the middle.of a year. And they have to meet all REIT investment and income tests, which I believe they already do. And they have to dividend out any tax-basis accumulated income that they earned while they were a C Corporation, whicj I suspect they are already doing. So they can re-elect almost any time.
My understanding is that their plan is to re-elect REIT status as soon as they use up their loss carryovers. Until then, they aren't paying much taxes anyway so the REIT election is not worthwhile. But their loss carryovers are pretty huge, so it may be a while before they re-elect.