PLR 201013031: IRS grants late S corporation election relief

Plain-English summary

The IRS ruled that a corporation could be treated as an S corporation from its intended effective date even though its S election was not timely filed. The ruling found reasonable cause for the missed filing under IRC § 1362(b)(5), subject to the corporation otherwise qualifying as an S corporation. It directed the corporation to file Form 2553 with a copy of the ruling within 60 days. The ruling expressed no opinion on whether the corporation otherwise qualified as an S corporation.

Ruling snapshot

• Question: Can a corporation receive relief for a late S corporation election when the missed filing resulted from reasonable cause?
• Outcome: Approved
• Key authorities: IRC § 1362(a), (b), and (b)(5); Form 2553

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 201013031
Third Party Communication: None
Release Date: 4/2/2010
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-143192-09
Date: December 2, 2009

LEGEND:

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

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

This responds to the letter dated August 7, 2009, and subsequent correspondence, submitted on behalf of X, requesting relief under § 1362(b)(5) of the Internal Revenue Code.

FACTS

The shareholder of X intended that X be treated as an S corporation effective on D1, but the election to be treated as an S corporation was inadvertently not filed. Accordingly, X requests a ruling that it will be treated as an S corporation effective D1.

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 in relevant part 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. Under § 1362(b)(3), however, if an S election is made after the first two and one-half months of a corporation's taxable year, then that corporation will not be treated as an S corporation until the taxable year after the year in which the S election is filed.
PLR-143192-09
2

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 and § 1362(b)(3) shall not apply.
X did not timely file an election to be treated as an S corporation under § 1362(a). X has, however, established reasonable cause for not making a timely S election and is entitled to relief under § 1362(b)(5). CONCLUSION 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 D1. Within 60 days from the date of this letter, X should submit a properly completed Form 2553, 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 tax consequences of the facts described above under any other provision of the Code. Specifically, no opinion is expressed concerning whether X is, in fact, 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.
Pursuant to the power of attorney on file with this office, a copy of this letter will be sent to X's authorized representative.
Sincerely,

David R. Haglund

David R. Haglund
Chief, Branch 1
Office of the Associate Chief Counsel
(Passthroughs and Special Industries)

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