PLR 200944019: Late S corporation election allowed for reasonable cause

Plain-English summary

The IRS determined that a company had reasonable cause for failing to timely make an S corporation election. The company's sole shareholder intended the company to be treated as an S corporation from the requested effective date, but Form 2553 was not timely filed. The IRS allowed the company to obtain relief under IRC § 1362(b)(5) by submitting a properly completed Form 2553 effective on that date within 60 days after the ruling date, provided the company otherwise qualified as an S corporation. The company was directed to attach a copy of the ruling to the form.

Ruling snapshot

• Question: May the company make a late S corporation election effective on the requested date?
• Outcome: Approved
• Key authorities: IRC § 1362(b)(5)

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 200944019
Third Party Communication: None
Release Date: 10/30/2009
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-123972-09
Date:
July 15, 2009

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

Date = ----------------------

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

This responds to a letter dated February 2, 2009, and subsequent correspondence, 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 under the laws of State. Shareholder is the 100% shareholder of X. X represents that Shareholder intended for X to be treated as an S corporation for the taxable year in which X began doing business, but no Form 2553, Election by a Small Business Corporation, was timely filed for X. X requests to be treated as an S corporation effective Date.

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)(5) provides that if: (1) 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 such election, then the Secretary may treat such an election as timely made for such taxable year.
PLR-123972-09
2

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

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

Except as specifically set forth above, no opinion is expressed or implied as to the federal income tax consequences of the transaction described above under any other provision of the Code. Specifically, no opinion is expressed 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) of the 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,

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

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