PLR 200414044: Late S corporation election accepted for reasonable cause

Plain-English summary

A corporation's sole shareholder intended it to be an S corporation from its formation, but the corporation did not file Form 2553 on time. The IRS found reasonable cause for the late election under section 1362(b)(5). It ruled that the election would be treated as timely for the requested year if the corporation filed a completed Form 2553 within 60 days of the letter. The IRS did not decide whether the corporation met the other requirements for S corporation status.

Ruling snapshot

• Question: May the corporation's late S election be treated as timely for its first taxable year?
• Outcome: Approved, conditioned on filing Form 2553 within 60 days.
• Key authorities: IRC § 1362(a), (b)(5).

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224
Number: 200414044
Release Date: 4/2/04
Index Number: 1362.01-03

--------------------------------------
Person To Contact:
-------------------------------------------- -------------------, ID No. -------------
-----------------------------
Telephone Number:
--------------------------------
---------------------
Refer Reply To:
CC:PSI:3 – PLR-151748-03
-
Date:
December 23, 2003

X = ----------------------------------------
-----------------------------------------

A = -------------------------
-------------------------------------------

d1 = ------------------------

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

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

This letter responds to a letter dated August 21, 2003, and subsequent correspondence submitted on behalf of X, requesting a ruling under § 1362(b)(5) of the Internal Revenue Code.

Facts

According to the information submitted, X was incorporated under State law on d1. X’s sole shareholder, A, intended for X to be an S corporation as of d1. However, X’s Form 2553, Election by a Small Business Corporation, was not filed timely.

X requests a ruling under § 1362(b)(5) that its § 1362(a) election will be treated as timely made for its taxable year that began on d1.

Law and Analysis

Section 1362(a) provides that a small business corporation may elect to be an S corporation.

2
PLR-151748-03

Section 1362(b) provides the rule on when an S election will be effective.
Generally, if an S election is made within the first two and one-half months of a corporation’s taxable year, then the corporation will be treated as an S corporation for the year in which the election is made. Section 1362(b)(3) provides that if an S election is made after the first two and one-half months of a corporation’s taxable year, then the corporation will not be treated as an S corporation until the taxable year after the year in which the S election is made.

Section 1362(b)(5) provides that if (1) an election under § 1362(a) is made for any taxable year after the date prescribed by § 1362(b) for making the election for the taxable year or no § 1362(a) election is made for any taxable year, and (2) the Secretary determines that there was reasonable cause for the failure to timely make the 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 a timely S corporation election, and 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 effective d1, within 60 days following the date of this letter, then such election will be treated as timely made for X’s taxable year that began on 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.

Under a power of attorney on file with this office, we are sending a copy of this letter to your authorized representative.

3
PLR-151748-03

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,

Mary Beth Collins
Senior Technician Reviewer, Branch 3
Office of the Associate Chief Counsel
(Passthroughs and Special Industries)
Enclosures (2)
Copy of this letter
Copy for § 6110 purposes

cc: