PLR 200808026: Corporation receives relief for a late S election

Plain-English summary

A corporation intended to elect S corporation status when it first had shareholders and began business, but it did not file the election on time. The IRS found reasonable cause for the missed deadline under section 1362(b)(5). It ruled that the corporation could be recognized as an S corporation from the intended effective date if it otherwise qualified. The corporation had to submit a completed Form 2553 with the ruling attached within 60 days. The IRS did not decide whether the corporation met the other S corporation requirements.

Ruling snapshot

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

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 200808026
Third Party Communication: None
Release Date: 2/22/2008
Date of Communication: Not Applicable
Index Number: 1362.01-03
Person To Contact:
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Refer Reply To:
CC:PSI:B01
PLR-143402-07
Date: November 15, 2007

LEGEND

X = -----------------------------------------------
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D1 = -------------------

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

State = ---------------

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

This responds to a letter dated August 8, 2007, submitted on behalf of X, requesting relief under § 1362(b)(5) of the Internal Revenue Code.

FACTS

According to the information submitted, X was incorporated on D1 under the laws of State. X first had shareholders and began doing business on D2. X intended to be treated as an S corporation for Federal tax purposes effective D2, but the proper election was not timely filed.

LAW AND ANALYSIS

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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 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 D2. 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, and provided that X otherwise qualifies as a subchapter S corporation, we conclude that X will be recognized as an S corporation effective D2. Within 60 days from the date of this letter, X must submit 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. Specifically, no opinion is expressed or implied concerning whether X otherwise qualifies as an S corporation for federal tax purposes.

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.

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

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