PLR 200205020: Late S election allowed for corporation's first tax year

Plain-English summary

Two shareholders intended their newly incorporated business to be an S corporation from its first tax year. An officers' resolution and affidavits documented that intent, but the corporation did not file Form 2553 on time. The IRS found reasonable cause under IRC § 1362(b)(5) and agreed to treat the election as timely if the corporation filed a completed Form 2553 within 60 days of the ruling. It did not decide whether the corporation otherwise qualified as a small business corporation.

Ruling snapshot

• Question: May the corporation make a late S election for its first tax year?
• Outcome: Approved, if Form 2553 is filed within 60 days.
• Key authorities: IRC §§ 1361(b), 1362(b)(5).

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury

Number: 200205020
Washington, DC 20224
Release Date: 2/1/2002
Index Number: 1362.01-03
Person to Contact:

Telephone Number:

Refer Reply To:
CC:PSI:2-PLR-136430-01
Date:
October 26, 2001

Legend

X:

A:

B:

D1:

Year 1:

Dear :

This responds to your representative’s letter dated June 22, 2001, 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. A and B, the shareholders of X on D1, intended X to be an S corporation effective for the Year 1 taxable year. This intent is evidenced by a resolution of the officers of X, dated D1, which states that X will elect to be taxed under subchapter S. X has also submitted affidavits evidencing this intent. However, a Form 2553, Election by a Small Business Corporation, was not timely filed for X’s Year 1 taxable year.

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 2
PLR-136430-01

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 Year 1 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 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 forwarded to X’s authorized representative.

Sincerely yours,

Matthew Lay
Senior Technician Reviewer, Branch 2
Associate Chief Counsel
(Passthroughs and Special Industries)

Enclosures (2)
Copy of this letter
Copy for § 6110 purposes