PLR 200120031: Corporation may file its late S corporation election within 60 days

Plain-English summary

A corporation's sole shareholder intended to elect S corporation status when the company was incorporated, but the company did not file Form 2553. It filed a tax return on Form 1120S. The IRS found reasonable cause for the missed election under IRC § 1362(b)(5). It ruled that the election would be treated as timely for the first tax year if the corporation filed Form 2553 within 60 days of the letter and attached a copy of the ruling. The IRS did not decide whether the company otherwise qualified as a small business corporation.

Ruling snapshot

• Question: Could the corporation's late S corporation election be treated as timely?
• Outcome: Approved, subject to filing Form 2553 within 60 days
• Key authorities: IRC §§ 1362(b)(5) and 1361(b)

Full text (IRS public release)

INTERNAL REVENUE SERVICE

Number: 200120031
Release Date: 5/18/2001
Index No.: 1362.01-03

CC:PSI:2 - PLR-121175-00

February 15, 2001
X =

A =

D1 =

Year 1 =

Dear

This responds to a letter dated October 5, 2000, submitted on behalf of X, requesting a ruling under § 1362(b)(5) of the Internal Revenue Code.

The information submitted states that X was incorporated on D1 of Year 1. The sole shareholder of X is A. A, X's president, represents that it was A’s intent to have X elect to be an S corporation effective D1 of Year 1. However, the Form 2553, Election by a Small Business Corporation, for X was not filed. X filed its tax return using Form 1120S, U.S. Income Tax Return for an S corporation.

. Section 1362(b)(5) provides that if--(A) an election under
§ 1362(a) is made for any taxable year after the date prescribed by § 1362(b) for making such election for such taxable year or no such election is made for any taxable year, and (B) the Secretary determines that there was reasonable cause for the failure to timely make such election, the Secretary may treat such an election as timely made for such taxable year.

Based solely on the facts and the representations submitted, we conclude that X has established reasonable cause for failing to make a timely election to be an S corporation effective for X's tax year beginning D1 of Year 1. Accordingly, provided that X makes an election to be an S corporation by filing a Form 2553 with the appropriate service center effective for its Year 1 taxable year, within 60 days following the date of this letter, then such election will be treated as timely made for X's Year 1 taxable year. A copy of this letter should be attached to the Form 2553.

-2-

Except as specifically ruled upon above, no opinion is expressed concerning the federal tax consequences of the facts described above under any other provisions of the Code, including whether X was or is a small business corporation under § 1361(b).
This ruling is directed only to the taxpayer who requested it. Section 6110(k)(3) provides that it may not be used or cited as precedent.

Pursuant to the power of attorney on file with this office a copy of this letter is being sent to X’s authorized representative.

Sincerely yours,
J. THOMAS HINES
Branch Chief, Branch 2
Office of the Associate Chief Counsel
(Passthroughs and Special Industries)
Enclosures: 2
Copy of this letter
Copy for § 6110 purposes