PLR 1027043: Corporation granted relief for late S corporation election

Plain-English summary

The IRS granted a corporation 60 days to file Form 2553 and have its S corporation election treated as timely. The corporation had intended the election to be effective on its incorporation date, but the form was not filed on time. The IRS concluded that the corporation had reasonable cause for the late filing. The relief was conditioned on filing the completed form with the appropriate service center within 60 days of the letter and attaching a copy of the ruling.

Ruling snapshot

• Question: May the corporation make a late S corporation election effective as of its incorporation date?
• Outcome: approved
• Key authorities: IRC § 1362; Form 2553

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201027043 Third Party Communication: None
Release Date: 7/9/2010 Date of Communication: Not Applicable
Index Number: 1362.01-03
Person To Contact:
------------------------------- ----------------------------------------
------------- Telephone Number:
--------------------- ---------------------
-------------------------------- Refer Reply To:
CC:PSI:B02
PLR-153577-09
Date:
February 25, 2010

Legend

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

State = ---------

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

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

This responds to a letter dated November 30, 2009 and subsequent correspondence,
submitted on behalf of X by X’s authorized representative, requesting a ruling under
§ 1362(b)(5) of the Internal Revenue Code.

FACTS

The information submitted states that X was incorporated in State on D1. It was
intended that X elect S corporation treatment effective D1; however, a Form 2553,
Election by a Small Business Corporation, was not timely filed for X.

LAW AND ANALYSIS

Section 1362(a) provides that a small business corporation may elect to be an S
corporation.
PLR-153577-09 2

Section 1362(b) provides the rule on when an S election will be effective. Generally, 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. Section 1362(b)(3) provides that if an S election is made after the first
two and one-half months of a corporation's taxable year, then the corporation will not be
treated as an S corporation until the taxable year after the year in which the S election is
made.

Section 1362(b)(5) provides that if (1) an election under § 1362(a) is made for any
taxable year 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 (2) the
Secretary determines that there was reasonable cause for the failure to timely make the
election, then the Secretary may treat the election as timely made for such taxable year
and § 1362(b)(3) shall not apply.

CONCLUSION

Based solely on the facts and the representations submitted, we conclude that X has
established reasonable cause for failing to make a timely election to be an S corporation
effective D1. Accordingly, provided that X makes an election to be an S corporation by
filing a completed Form 2553 with the appropriate service center effective D1 within 60
days following the date of this letter, then such election will be treated as timely made
for X's taxable year beginning D1. A copy of this letter should be attached to the Form
2553.

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 is, in
fact, 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.
PLR-153577-09 3

Pursuant to 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