IRS granted late partnership classification election

Plain-English summary

The IRS granted a foreign eligible entity 60 more days to file Form 8832 and elect partnership classification for federal tax purposes. The entity had intended to be treated as a partnership but inadvertently failed to file the election on time. The IRS concluded that the requirements for late-election relief under Treas. Reg. § 301.9100-3 were satisfied. The ruling allowed the election to be effective as of the entity's formation date, subject to filing the form with the appropriate service center and attaching a copy of the ruling.

Ruling snapshot

• Question: Could the foreign entity file Form 8832 late to elect partnership classification effective as of its formation date?
• Outcome: Approved
• Key authorities: Treas. Reg. §§ 301.7701-3 and 301.9100-1 through 301.9100-3

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201025029 Third Party Communication: None
Release Date: 6/25/2010 Date of Communication: Not Applicable
Index Number: 7701.00-00, 9100.31-00
Person To Contact:
-------------------- ---------------------------, ID No. ------------
--------------------------------------------- Telephone Number:
---------------------- --------------------
----------------------- Refer Reply To:
-------------------------- CC:PSI:B01
--------------------------- PLR-142080-09
Date: March 2, 2010

LEGEND

X = ----------------------------------------------

Country = ---------------------

D1 = -----------------

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

     This responds to a letter dated September 9, 2009, and subsequent

correspondence, submitted on behalf of X, requesting that the Service grant X an
extension of time under § 301.9100-3 of the Procedure and Administration Regulations
to file an election under § 301.7701-3(c) to be treated as a partnership for federal tax
purposes.

FACTS

   According to the information submitted, X was formed on D1 under the laws of

Country. X intended to be treated as a partnership for federal tax purposes effective
D1. However, X inadvertently failed to timely file Form 8832, Entity Classification
Election, to elect to be treated as a partnership for federal tax purposes.

LAW AND ANALYSIS

   Section 301.7701-3(a) provides in part 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)
PLR-142080-09 2

can elect its classification for federal tax purposes. An eligible entity with at least two
members can elect to be classified as either an association or a partnership.

    Section 301.7701-3(b)(2) provides guidance on the classification of a foreign

eligible entity for federal tax purposes. Generally, a foreign eligible entity is treated as
an association if all members have limited liability, unless the entity makes an election
to be treated otherwise. A foreign eligible entity with two or more members, all of which
have limited liability, may elect to be treated as a partnership for federal tax purposes,
pursuant to the rules of § 301.7701-3(c). Section 301.7701-3(c) 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 the form is filed.

    Section 301.7701-3(c)(2) provides that such an election must be signed by either

(A) each member of the electing entity who is an owner at the time the election is filed;
or (B) any officer, manager, or member of the electing entity who is authorized (under
local law or the entity’s organization documents) to make the election and who
represents to having such authorization under penalties of perjury.

   Section 301.9100-1(c) provides that the Commissioner may grant a reasonable

extension of time to make a regulatory election, or a statutory election (but no more than
6 months except in the case of a taxpayer who is abroad), under all subtitles of the
Internal Revenue Code except subtitles E, G, H, and I. Section 301.9100-1(b) defines
the term “regulatory election” as an election whose due date is prescribed by a
regulation published in the Federal Register or a revenue ruling, revenue procedure,
notice, or announcement published in the Internal Revenue Bulletin.

    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 the
election. Section 301.9100-2 provides the rules governing automatic extensions of time
for making certain elections. Section 301.9100-3 provides the standards the
Commissioner will use to determine whether to grant an extension of time for regulatory
elections that do not meet the requirements of § 301.9100-2. Under § 301.9100-3, a
request for relief will be granted when the taxpayer provides evidence to establish to the
satisfaction of the Commissioner that (1) the taxpayer acted reasonably and in good
faith, and (2) granting relief will not prejudice the interests of the government.

CONCLUSION

  Based solely on the information submitted and the representations made, we

conclude that the requirements of § 301.9100-3 have been satisfied. As a result, X is
granted an extension of time of 60 days from the date of this letter to file Form 8832 with
the appropriate service center to elect to be treated as a partnership for federal tax
purposes effective D1. A copy of this letter should be attached to the Form 8832. A
PLR-142080-09 3

copy is enclosed for that purpose.

   Except as specifically set forth above, no opinion is expressed concerning the

federal tax consequences of the facts described above under any other provision of the
Code.

  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 a power of attorney on file with this office, a copy of this letter is

being sent to X's authorized representative.

                                       Sincerely,

                                         /s/

                                       Curt G. Wilson
                                       Associate Chief Counsel
                                       (Passthroughs and Special Industries)

Enclosures (2)

   Copy of this letter
   Copy of this letter for section 6110 purposes