PLR 200724023: Corporation may file S election after service center finds no timely form

Plain-English summary

A corporation's sole shareholder intended S corporation status from a specified date, but the IRS service center had no record of a timely Form 2553. The IRS found reasonable cause for the failure to make a timely election. It ruled that an election specifying the intended date would be treated as timely if the corporation filed a completed Form 2553 within 60 days of the letter. The ruling does not decide whether the corporation meets the separate small business corporation requirements of section 1361(b).

Ruling snapshot

• Question: Can the corporation make an S election effective on its intended date despite the missing timely filing?
• Outcome: Approved, if a completed Form 2553 is filed within 60 days.
• Key authorities: IRC §§ 1362(b)(5), 1361(b)

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224
Number: 200724023
Third Party Communication: None
Release Date: 6/15/2007
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:B02
PLR-152830-06
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Date:
March 09, 2007

Legend

X = ------------------------------------------------------------------------------------------------------
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A = ------------------------------------------------------------------------------------------------------
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State = -----------

D1 = -------------------------

D2 = ----------------------

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

This responds to the letter dated November 7, 2006, submitted on behalf of X by X's authorized representative, requesting a ruling under § 1362(b)(5) of the Internal Revenue Code.

The information submitted states that X was incorporated in State on D1. A, the sole shareholder of X, intended for X to be an S corporation effective D2. However, X's Internal Revenue service center has no record of Form 2553, Election by a Small Business Corporation, being timely filed for X. Accordingly, X requests a ruling that it will be treated as an S corporation effective D2.

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

PLR-152830-06
2

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 the election as timely made for such taxable year and § 1362(b)(3) shall not apply.

Based solely on the facts and the representations submitted, we conclude that X has established reasonable cause for failing to make a timely election to be an S corporation effective D2. Accordingly, provided that X makes an election to be an S corporation by filing a completed Form 2553 with the appropriate service center effective D2 within 60 days following the date of this letter, then such election will be treated as timely made for X's taxable year beginning D2. A copy of this letter should be attached to the Form 2553.

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, including whether X was or is a small business corporation under § 1361(b).

This ruling is directed only to the taxpayer who requested 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,

J. Thomas Hines
Chief, Branch 2
Office of the Associate Chief Counsel
(Passthroughs & Special Industries)

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