PLR 200152009: Late S election allowed for first taxable year

Plain-English summary

A corporation's president intended S corporation treatment from its first tax year, and the corporation filed a Form 1120S for that year. It did not file Form 2553 on time. The IRS found reasonable cause for the missed election and ruled that the corporation's Form 2553 would be treated as timely if it filed a completed form within 60 days of the letter. The IRS did not decide whether the corporation otherwise met the small business corporation requirements of section 1361(b).

Ruling snapshot

• Question: Could the corporation make a late S election effective for its first tax year?
• Outcome: Approved conditionally: file Form 2553 within 60 days of the ruling.
• Key authorities: IRC §§ 1362(b)(5) and 1361(b).

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury

Number: 200152009
Washington, DC 20224
Release Date: 12/28/2001
Index Number: 1362.01-03
Person to Contact:

Telephone Number:

Refer Reply To:
CC:PSI:B02-PLR-139122-01
Date:
September 24, 2001

X =

A =

B =

D1 =

Year 1 =

Dear
:

This responds to your letter dated July 12, 2001, and subsequent correspondence, written 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. A and B are X’s shareholders. A, who is also X’s president, represents that he intended for X to be treated as an S corporation for federal tax purposes as of Year 1, X's first taxable year. X filed a Form 1120S, U.S. Income Tax Return for an S Corporation, for its Year 1 taxable year. However, a Form 2553, Election by a Small Business Corporation, was not filed timely for X for Year 1.

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 for X's first taxable year. Accordingly, provided that X makes an election to be an S corporation by filing a completed Form 2553 with the appropriate service center effective for its Year 1 taxable year, within 60 days following the date of this letter, then 2 PLR-139122-01

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.

Except as specifically set forth above, no opinion is expressed concerning the federal tax consequences of the facts described above under any other provision 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 a power of attorney on file with this office, a copy of this letter is being sent to X's authorized representative.

Sincerely yours,
Matthew Lay
Senior Technician Reviewer, Branch 2
Office of the Associate Chief Counsel
(Passthroughs and Special Industries)
Enclosures: 2
Copy of this letter
Copy for § 6110 purposes