PLR 200924020: Corporation received relief for a late S election

Plain-English summary

A corporation intended to be treated as an S corporation from its incorporation date, but the IRS did not timely receive its Form 2553 election. The IRS found reasonable cause for the late election and granted relief under section 1362(b)(5). If the corporation filed the required election with the appropriate service center within 60 days and attached the ruling, the election would be treated as timely from the requested date. The IRS did not decide whether the corporation otherwise met the definition of a small business corporation under section 1361(b).

Ruling snapshot

• Question: Could the corporation's late S election be treated as timely?
• Outcome: Approved, subject to filing the election within 60 days
• Key authorities: IRC §§ 1361(b) and 1362(a) and (b)(5)

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 200924020
Third Party Communication: None
Release Date: 6/12/2009
Date of Communication: N/A
Index Number: 1362.01-03
Person To Contact:
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Refer Reply To:
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CC:PSI:B02
PLR-146310-08
Date:
February 23, 2009

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

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

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

This responds to a letter dated July 31, 2008, submitted on behalf of X requesting relief under § 1362(b)(5) of the Internal Revenue Code.

The information submitted states that X was incorporated on Date 1 under the laws of State. It was intended for X to be an S corporation effective Date 1. However, no Form 2553, Election by a Small Business Corporation, for X was timely received by the Service.

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.
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 such election for
PLR-146310-08
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such taxable year or no such election is made for any taxable year, and (2) the Secretary determines that there was reasonable cause for the failure to timely make such election, then the Secretary may treat such an election as timely made for such taxable year.

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 Date 1. Accordingly, provided that X makes an election be an S corporation by filing a completed Form 2533 with the appropriate service center effective Date 1 within 60 days following the date of this letter, then such election will be treated as timely made for X's taxable year beginning Date 1. 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 income 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) of the Code.

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

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

Sincerely,

Bradford R. Poston
Senior Counsel, Branch 2
Office of the Associate Chief Counsel
(Passthroughs and Special Industries)

Enclosures (2):
Copy of this letter
Copy for section 6110 purpose-s