PLR 200629013: Parent gets late QSub election after acquiring subsidiary

Plain-English summary

An S corporation acquired all the stock of another S corporation and relied on its attorney for advice about required elections. It was not told to file a qualified subchapter S subsidiary (QSub) election to continue flow through treatment of the acquired company. The IRS found that the parent met the requirements for discretionary filing relief under Treasury Regulation sections 301.9100-1 and 301.9100-3. It gave the parent 60 days to file Form 8869 electing QSub treatment from the acquisition date. The IRS did not decide whether either company otherwise met the requirements for its claimed tax status.

Ruling snapshot

• Question: May the parent make a late QSub election for the acquired company?
• Outcome: Approved, with 60 days to file Form 8869.
• Key authorities: IRC § 1361(b)(3); Treas. Reg. §§ 1.1361-3 and 301.9100-3.

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224
Number: 200629013
Release Date: 7/21/2006
Index Numbers: 9100.22-00

• Person To Contact:
  ------------------- -----------------------------------------------------
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  ---------------------------- Telephone Number:
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  ------------------------------ Refer Reply To:
  CC:PSI:2 – PLR-149278-05
  Date:
  April 03, 2006

Legend

X = ------------------------------------
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Y = ---------------------------------------------
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d1 = --------------------------

d2 = ----------------------

d3 = --------------------------

d4 = -----------------

Dear -----------------------------

This responds to a letter dated September 2, 2005, submitted on behalf of X, by X’s authorized representative, requesting that the Service grant X an extension of time pursuant to § 301.9100-1(c) of the Procedure and Administration Regulations to elect to treat Y as a qualified subchapter S subsidiary (QSub) under § 1361(b)(3) of the Internal Revenue Code. 2

According to the information submitted, X was incorporated on d1 and elected to be an S corporation effective d2. Y was formed on d3 and also elected to be an S corporation. X acquired all of the stock of Y on d4. X relied on its attorney to advise X of any necessary elections. However, X was not advised of the need to file a QSub election to continue flow through tax treatment of Y. Thus, no QSub election was filed.

Section 1361(b)(3)(B) defines a QSub as a domestic corporation that is not an ineligible corporation, if 100 percent of the stock of the corporation is owned by an S corporation, and the S corporation elects to treat the corporation as a QSub.

Section 1.1361-3(a)(4) of the Income Tax Regulations provides that the election will be effective on the date specified on the election form or on the date the election is filed if no date is specified. The effective date specified on the election form cannot be more than two months and 15 days prior to the date of filing and cannot be more than 12 months after the date of filing.

Section 301.9100-1(c) provides that the Commissioner has discretion to grant a reasonable extension of time under the rules set forth in § 301.9100-3 to make a regulatory election. Section 301.9100-1(b) defines a regulatory election as an election with a due date prescribed by a regulation published in the Federal Register, or a revenue ruling, revenue procedure, notice, or announcement published in the Internal Revenue Bulletin.

Requests for relief under § 301.9100-3 will be granted when the taxpayer provides evidence to establish that the taxpayer acted reasonably and in good faith, and that granting relief will not prejudice the interests of the Government.

Based solely on the information submitted and the representations made, we conclude that X has satisfied the requirements of §§ 301.9100-1 and 301.9100-3. Accordingly, X is granted an extension of time of sixty (60) days from the date of this letter to elect to treat Y as a QSub effective d4. The election should be made by filing Form 8869, Qualified Subchapter S Subsidiary Election, with the appropriate service center. A copy of this letter should be attached to the election. A copy is enclosed for this purpose.

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. Specifically, no opinion is expressed concerning whether X is a valid S corporation or whether Y is a valid QSub for federal tax purposes. 3

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.

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

Sincerely,

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

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

cc: