PLR 200729027: Corporation receives relief for late S election

Plain-English summary

A corporation intended to elect S corporation treatment from its incorporation date but missed the filing deadline. The IRS found reasonable cause for the late election and agreed to recognize S status from that date. The corporation must otherwise qualify for S status and submit a completed Form 2553 within 60 days of the ruling letter, with the letter attached.

Ruling snapshot

• Question: Can the late S corporation election take effect from incorporation?
• Outcome: Approved, subject to eligibility and 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: 200729027
Third Party Communication: None
Release Date: 7/20/2007
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:B01
PLR-150984-06
Date: April 9, 2007

LEGEND

X = ---------------------
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D = ------------------

State = --------

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

This responds to a letter dated August 27, 2006, and subsequent correspondence, submitted by X, requesting relief under § 1362(b)(5) of the Internal Revenue Code.

FACTS

According to the information submitted, X was incorporated on D under the laws of State. X intended to be treated as an S corporation for Federal tax purposes effective D, but the proper election was not timely filed.

LAW AND ANALYSIS

Section 1362(a) provides that a small business corporation may elect to be an S corporation. Section 1362(b) provides the rule on when an S election will be effective.

Section 1362(b)(2) provides that 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. If the election is made after the first two and one-half months of a corporation's taxable year, then the corporation will
PLR-150984-06
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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 no election is made pursuant to § 1362(a), or, if made, the election is made after the date prescribed for making such an election, and the Secretary determines there was reasonable cause for the failure to timely make the election, then the Secretary may treat such election as timely made for such taxable year and effective as of the first day of that year.

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

CONCLUSION

Based solely on the facts submitted and representations made, we conclude that X will be recognized as an S corporation effective D, provided that X otherwise qualifies as a subchapter S corporation, and provided that within 60 days from the date of this letter, X submits a properly completed Form 2553, with a copy of this letter attached, to the appropriate service center.

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 requesting it. Section 6110(k)(3) provides that it may not be used or cited as precedent.

Sincerely,

Dianna K. Miosi
Chief, Branch 1
Office of the Associate Chief Counsel
(Passthroughs & Special Industries)

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