PLR 1024038: IRS granted late-election relief for an S corporation election

Plain-English summary

The IRS ruled that a company had reasonable cause for failing to timely file its S corporation election. The company had intended to be treated as an S corporation and represented that it had acted consistently with that intended status. The IRS allowed the company to make the election effective on the requested date if it filed a completed Form 2553 with the appropriate service center within 60 days after the letter. The ruling did not address whether the company otherwise qualified to be an S corporation.

Ruling snapshot

• Question: May the company make a late S corporation election effective as of its intended 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: 201024038 Third Party Communication: None
Release Date: 6/18/2010 Date of Communication: Not Applicable
Person To Contact:
Index Number: 1362.01-03 ------------------------, ID No. -------------------
----------------------------------------------------
Telephone Number:

                                                       ---------------------

------------------- Refer Reply To:
---------------------------- CC:PSI:B03
------------------------------ PLR-150731-09
Date:
March 08, 2010

                                             Legend

Company = -------------------------------------------------------------------------------------------------
-----------------------
State = -------------------
Date = ------------------

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

  This letter responds to a letter dated November 2, 2009, submitted on behalf of

Company, requesting a ruling under § 1362(b)(5) of the Internal Revenue Code.

                                               Facts

     Company was incorporated under the laws of State on Date. Company’s

shareholders intended Company to be treated as an S corporation as of Date. A Form
2553, Election by a Small Business Corporation, was not timely filed. Company
represents that it has acted consistently with Company’s intended status as an S
Corporation. Company requests a ruling that it will be recognized as an S corporation
effective Date.

                                       Law and Analysis

   Section 1362(a)(1) provides that, except as provided in § 1362(g), a small

business corporation may elect, in accordance with the provisions of § 1362, to be an S
corporation.

     Section 1362(b)(1) provides that an election under § 1362(a) may be made by a

small business corporation for any taxable year (A) at any time during the preceding
taxable year, or (B) at any time during the taxable year and on or before the 15th day of
the third month of the taxable year.
PLR-150731-09 2

   Section 1362(b)(3) provides that if (A) a small business corporation makes an

election under § 1362(a) for any taxable year, and (B) the election is made after the 15th
day of the third month of the following taxable year, then such election shall be treated
as made for the following taxable year.

   Section 1362(b)(5) provides that if (A) an election under § 1362(a) is made for

any taxable year (determined without regard to § 1362(b)(3)), after the date prescribed
by § 1362(b) for making the election for the taxable year or no § 1362(a) election is
made for any taxable year, and (B) the Secretary determines that there was reasonable
cause for the failure to timely make such election, the Secretary may treat the election
as timely made for the taxable year (and § 1362(b)(3) shall not apply).

                                    Conclusion

   Based solely on the facts submitted and representations made, we conclude that

Company has established reasonable cause for failing to make an S corporation
election. Thus, we conclude that Company is eligible for relief under § 1362(b)(5).
Accordingly, if Company makes an election to be an S corporation by filing with the
appropriate service center a completed Form 2553 effective Date within 60 days
following the date of this letter, we rule that the election shall be treated as timely made.
A copy of this letter should be attached to Form 2553. A copy is enclosed for that
purpose.

   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 as to whether
Company is otherwise eligible to be 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.

   The ruling contained in this letter is based upon information and representations

submitted by the taxpayer and accompanied by a penalty of perjury statement executed
by an appropriate party. While this office has not verified any of the material submitted
in support of the ruling request, it is subject to verification on examination.
PLR-150731-09 3

     In accordance with the power of attorney on file with this office, a copy of this

letter is being sent to your authorized representative.

                                    Sincerely,

                                    Leslie H. Finlow

                                    Leslie H. Finlow
                                    Senior Technician Reviewer, Branch 3
                                    Office of the Associate Chief Counsel
                                    (Passthroughs & Special Industries)

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

cc: