PLR 200936013: Sixty-day extension granted for a late partnership classification election

Plain-English summary

A foreign entity represented that it was eligible to elect partnership classification for federal tax purposes, but its Form 8832 was not timely filed. The IRS concluded that the requirements for relief from the late filing were satisfied. It granted an extension of 60 days from the ruling date to make the election, effective on the requested date, by filing Form 8832 with the appropriate service center. The ruling expressed no opinion on other federal tax consequences of the facts.

Ruling snapshot

• Question: May a foreign entity receive extra time to elect partnership classification for federal tax purposes?
• Outcome: Approved
• Key authorities: Treas. Reg. §§ 301.7701-3 and 301.9100-3

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 200936013
Third Party Communication: None
Release Date: 9/4/2009
Date of Communication: Not Applicable
Index Number: 7701.00-00, 9100.00-00
Person To Contact:
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Telephone Number:
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------------------------------------------- Refer Reply To:
CC:PSI:B1
PLR-150905-08
Date: May 19, 2009

Legend

X = ------------------------
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Country = ------------

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

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

This letter responds to a request dated November 28, 2008 requesting an extension of time pursuant to § 301.9100-3 of the Procedure and Administration Regulations to file an election to treat X as a partnership for federal tax purposes under § 301.7701-3(c).

Facts

According to the information submitted, X is an entity organized under the laws of Country. X represents that as of Date 1, X was eligible to make an election under § 301.7701-3(c), to be taxed as a partnership for federal tax purposes. However, the Form 8832, Entity Classification Election, was not timely filed.

Law and Analysis

Section 301.7701-3(a) provides that a business entity that is not classified as a corporation under § 301.7701-2(b)(1), (3), (4), (5), (6), (7), or (8) (an "eligible entity") can elect its classification for federal tax purposes. An eligible entity with at least two
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members can elect to be classified as either an association (and thus a corporation under §301.7701-2(b)(2)) or a partnership.

Section 301.7701-3(b)(2) provides guidance on the classification of a foreign eligible entity for federal tax purposes. Generally, unless the entity makes an election to be treated otherwise, a foreign eligible entity is treated as an association taxable as a corporation if all members have limited liability. If a foreign eligible entity has only one owner, it may elect to be treated as a disregarded entity pursuant to the rules in § 301.7701-3(c). If a foreign eligible entity has more than one owner, it may elect to be treated as a partnership pursuant to the rules in § 301.7701-3(c).

Section 301.7701-3(c) further provides that an entity classification election must be filed on Form 8832, and can be effective up to 75 days prior to the date the form is filed or up to 12 months after the date on which the form is filed.

Under § 301.9100-1(c), the Commissioner may grant a reasonable extension of time to make a regulatory election, or a statutory election (but no more than six months except in the case of a taxpayer who is abroad), under all subtitles of the Code, except subtitles E, G, H, and I. Section 301.9100-1(b) defines the term regulatory election as including an election with a deadline prescribed by a regulation published in the Federal Register.

Sections 301.9100-1 through 301.9100-3 provide the standards the Commissioner will use to determine whether to grant an extension of time to make an election.

Section 301.9100-2 provides automatic extensions of time for making certain elections. Section 301.9100-3 provides extensions of time for making elections that do not meet the requirements of § 301.9100-2.

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. Section 301.9100-3(a).

Conclusion

Based solely upon the information submitted, we conclude that the requirements of §§ 301.9100-1 and 301.9100-3 have been satisfied. As a result, an extension of 60 days from the date of this letter is granted to elect to treat X as a partnership for federal tax purposes, effective Date 1. The entity classification election should be made by filing Form 8832 with the appropriate service center. A copy of this letter should be attached to the Form 8832. A copy is enclosed for that purpose.
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Except as expressly provided herein, no opinion is expressed or implied concerning the federal tax consequences of the facts described under any other provision of the Code.

This ruling is directed only to the taxpayer(s) requesting it. Section 6110(k)(3) of the Internal Revenue Code 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 X’s authorized representative.

Sincerely,

Curtis G. Wilson

Curtis G. Wilson
Associate Chief Counsel
(Passthroughs & Special Industries)

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