PLR 200538007: Late S election accepted after reasonable cause finding

Plain-English summary

A newly incorporated company’s shareholder intended S corporation status to begin on the incorporation date, but the election was filed late. The IRS found reasonable cause for the delay and granted relief under section 1362(b)(5). The company would be recognized as an S corporation from the requested date if it otherwise qualified. It had to send an original Form 2553 and a copy of the ruling to the relevant IRS service center within 60 days of the letter.

Ruling snapshot

• Question: Could the company’s late S election take effect on its incorporation date?
• Outcome: Approved, subject to S corporation eligibility and a Form 2553 filing within 60 days.
• Key authorities: IRC § 1362(b)(5).

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224
Number: 200538007
Third Party Communication: None
Release Date: 9/23/2005
Date of Communication: Not Applicable
Index Number: 1362.01-03
Person To Contact:
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Telephone Number:
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Refer Reply To:
CC:PSI:B01
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PLR-113588-05
Date:
June 13, 2005

Legend:

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

State = ---------

Date 1 = -----------------

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

This letter is in response to your request, on behalf of X, dated July 28, 2004, for a written determination granting relief under section 1362(b)(5) of the Internal Revenue Code.

Facts

X was incorporated under the laws of State on Date 1. The shareholder of X intended that X elect to be treated as an S corporation effective Date 1. However, the election to be treated as an S corporation, effective Date 1, was not timely filed.

Law and Analysis

Section 1362(a) of the Code provides that a small business corporation can elect to be treated as an S corporation.

Section 1362(b) of the Code provides guidance on when the S election becomes effective. If an S election is made within the first two and one-half months of a corporation=s taxable year, then that corporation will be treated as an S corporation for the year in which the election was made. If the corporation makes an election after the

PLR-113588-05
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first two and one-half months of a corporation=s taxable year, then the corporation will generally not be treated as an S corporation until the following taxable year.

Section 1362(b)(5) of the Code provides that if no election is made pursuant to section 1362(a), or if the election is made after the date prescribed for making such an election, and the Secretary determined reasonable cause existed for the failure to timely make the election, then the Secretary can treat such an election as being timely made for that taxable year and effective as of the first day of that taxable year.

X did not file a timely election to be treated as a S corporation under section 1362(a). X has, however, established reasonable cause for not making a timely S election. Therefore, X is entitled to relief under section 1362(b)(5).

Conclusion

Based solely on the facts submitted and representations made, and provided that X otherwise qualifies as a subchapter S corporation, we conclude that X will be recognized as an S corporation effective Date 1. An original Form 2553 along with a copy of this letter must be forwarded to the relevant Service Center within sixty (60) days from the date of this letter.

Except as expressly provided herein, no opinion is expressed or implied concerning the tax consequences of any aspect of any transaction or item discussed or referenced in this letter.

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

Pursuant to the Power of Attorney on file with this office, we will send a copy of this ruling to the taxpayer.

Sincerely,

/s/ Dianna K. Miosi

Dianna K. Miosi
Chief, Branch 1
(Passthroughs & Special Industries)

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

cc: