PLR 200404047: Late S corporation election accepted if filed within 60 days

Plain-English summary

A corporation and its two shareholders intended S corporation status from the date of incorporation, but the corporation did not file Form 2553 on time. The IRS found reasonable cause for the late election under § 1362(b)(5). It said the election would be treated as timely for the taxable year beginning on the incorporation date if the corporation filed a completed Form 2553 within 60 days of the letter and used that date as its effective date. The IRS did not decide whether the corporation otherwise qualified for S corporation status.

Ruling snapshot

• Question: Can the corporation make a late S election effective from its incorporation date?
• Outcome: Approved, subject to filing Form 2553 within 60 days.
• Key authorities: IRC § 1362(a), (b)(1), (b)(3), (b)(5).

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224
Number: 200404047
Release Date: 01/23/2004
Index Number: 1362.01-03

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Person To Contact:
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Telephone Number:
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Refer Reply To:
CC:PSI:3 – PLR-152550-03
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Date:
October 15, 2003

X = ------------------------------------------------------
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A = ----------------------
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B = ------------------------
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d1 = ------------------

State = ------------------

Dear -----------------:

This letter responds to a letter dated August 27, 2003, on behalf of X, requesting a ruling under § 1362(b)(5) of the Internal Revenue Code.

Facts

X was incorporated under State law on d1. X’s shareholders, A and B, intended for X to be an S corporation as of d1. However, X’s Form 2553, Election be a Small Business Corporation, was not filed timely.

X requests a ruling that it will be recognized as an S corporation effective for the taxable year beginning d1.

Law and Analysis

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PLR-152550-03

Section 1362(a)(1) provides that a small business corporation may elect to be an S corporation. Section 1362(b)(1) provides that such election shall be effective for the current taxable year if it is made during the preceding taxable year or before the 15th day of the third month of the current taxable year. Section 1362(b)(3) provides that an election made after the 15th day of the third month of the current taxable year shall be treated as having been made for the following taxable year.

Section 1362(b)(5) provides that if an election under § 1362(a) is made for any taxable year (determined without regard to § 1362(b)(3)), after the date prescribed by this subsection for making such election for such taxable year or no such election is made for any taxable year, and the Secretary determines that there was reasonable cause for the failure to make such election, then the Secretary may treat such an election as timely made for such taxable year (and § 1362(b)(3) shall not apply).

Conclusion

Based on the facts submitted and representations made, we conclude that X has established reasonable cause for failing to make an S election in a timely manner. Thus, we conclude that X is eligible for relief under § 1362(b)(5). Accordingly, if X makes an election to be an S corporation by filing with the appropriate service center a completed Form 2553 within 60 days of this letter, containing as an effective date d1, then such election shall be treated as timely made for X’s taxable year beginning d1. A copy of this letter should be attached to the Form 2553 filed with the Service Center. A copy is enclosed for that purpose.

Except as expressly provided herein, we express or imply no opinion concerning the federal tax consequences of any aspect of any transaction or item discussed or referenced in this letter. Specifically, we express or imply no opinion concerning whether X is otherwise eligible to be an S corporation for federal income tax purposes.

In accordance with the power of attorney on file with this office, a copy of this letter is being sent to your representative.

This ruling is directed only to the taxpayer requesting it. Section 6110(k)(3) of the Code provides that it may not be used or cited as precedent.

Sincerely,
Christine E. Ellison
Chief, Branch 3
Office of Associate Chief Counsel
(Passthroughs & Special Industries)

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PLR-152550-03

Enclosures (2)
A copy of this