PLR 200535014: Foreign entity gets time to elect partnership treatment

Plain-English summary

A foreign entity owned by two corporations wanted to be classified as a partnership for U.S. tax purposes from its formation date. Because both owners had limited liability, it otherwise would be treated as a corporation under the default classification rule. The entity inadvertently missed the deadline to file Form 8832. The IRS found that it met the requirements for discretionary late election relief and gave it 60 days to file Form 8832 with a copy of the ruling, using its formation date as the effective date.

Ruling snapshot

• Question: Could the foreign entity make a late election to be taxed as a partnership from its formation date?
• Outcome: Approved: 60 days to file Form 8832 with the requested effective date.
• Key authorities: Treas. Reg. §§ 301.7701-3(b)(2), 301.7701-3(c), 301.9100-3.

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224
Number: 200535014
Third Party Communication: None
Release Date: 9/2/2005
Date of Communication: Not Applicable
Index Number: 7701.00-00, 9100.31-00
Person To Contact:
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Telephone Number:
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Refer Reply To:
CC:PSI:B02
PLR-158700-04
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Date:
May 12, 2005

Legend

X: ------------------------------------------------
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Y: ----------------------------------
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Z: ---------------------------
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State: ------------

Country 1: ----------

Country 2: --------

Date 1: -------------------------

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

This responds to a letter dated November 5, 2004, submitted on behalf of X, requesting that the Service grant X an extension of time under § 301.9100-3 of the Procedure and Administration Regulations to elect to be treated as a partnership under § 301.7701-3(c).

Facts

PLR-158700-04
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The information submitted states that X is a corporation formed under the laws of Country 1 on Date 1. X is owned by Y and Z, two entities with limited liability. Y is a domestic corporation formed under the laws of State. Z is a corporation formed under the laws of Country 2. Due to inadvertence, X failed to file a timely election, Form 8832, Entity Classification Election, to be treated as a partnership, effective Date 1.

Law and Analysis

Section 301.7701-3(b)(2) provides guidance on the classification of a foreign entity for federal income tax purposes. Generally, a foreign eligible entity is treated as an association taxable as a corporation if all members have limited liability, unless the entity makes an election to be treated otherwise. If the foreign eligible entity has more than one owner, it may elect to be treated as a partnership pursuant to the rules in § 301.7701-3(c).

Section 301.7701-3(c) provides that an entity classification election must be filed on Form 8832 and can be effective up to seventy-five (75) days prior to the date the form is filed or up to twelve (12) months after the date on which the form is filed.

Section 301.9100-1(c) provides that the Commissioner may grant a reasonable extension of time to make a regulatory election, or a statutory election (but no more than 6 months except in the case of a taxpayer who is abroad), under all subtitles of the Internal Revenue Code except subtitles E, G, H, and I. Section 301.9100-1(b) defines the term “regulatory election” as an election whose due date is prescribed by a regulation published in the Federal Register or a revenue ruling, revenue procedure, notice, or announcement published in the Internal Revenue Bulletin.

Sections 301.9100-1 through 301.9100-3 provide the standards the Commissioner will use to determine whether to grant an extension of time to make the election. Section 301.9100-2 provides the rules governing automatic extensions of time for making certain elections. Section 301.9100-3 provides the standards the Commissioner will use to determine whether to grant an extension of time for regulatory elections that do not meet the requirements of § 301.9100-2. Under § 301.9100-3, a request for relief will be granted when the taxpayer provides evidence to establish to the satisfaction of the Commissioner that (1) the taxpayer acted reasonably and in good faith, and (2) granting relief will not prejudice the interests of the government.

Conclusion

Based solely on the information submitted and the representations made, we conclude that the requirements of § 301.9100-3 have been satisfied. As a result, X is granted an extension of time of 60 days from the date of this letter to file a Form 8832 with the appropriate service center and elect to be treated as a partnership, effective Date 1. A copy of this letter should be attached to the Form 8832. A copy is enclosed for that purpose.

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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.

This ruling is directed only to the taxpayer requesting 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,

Heather C. Maloy
Associate Chief Counsel
(Passthroughs and Special Industries)

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