PLR 1029001: The IRS granted relief for a late S corporation election

Plain-English summary

The IRS found that a corporation had reasonable cause for failing to timely file its S corporation election. The corporation’s sole shareholder intended the election to be effective on the corporation’s incorporation date, but Form 2553 was not filed on time. The IRS allowed the corporation 60 days to file a completed Form 2553, after which the election would be treated as timely made for the requested effective date. The relief remained subject to the corporation otherwise being eligible to be an S corporation.

Ruling snapshot

• Question: Could the corporation receive relief for its late S corporation election under IRC § 1362(b)(5)?
• Outcome: approved, subject to filing Form 2553 within 60 days and satisfying the other eligibility requirements
• Key authorities: IRC §§ 1362(a), 1362(b)(1), 1362(b)(3), 1362(b)(5), and 6110(k)(3)

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201029001 Third Party Communication: None
Release Date: 7/23/2010 Date of Communication: Not Applicable
Index Number: 1362.01-03
Person To Contact:
-------------------------------------- ----------------------, ID No. -----------------
----------------------------------------- Telephone Number:
------------------------ ---------------------
----------------------------------- Refer Reply To:
CC:PSI:B03
PLR-100148-10
Date:
April 21, 2010

                                               LEGEND

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

A = -----------------------------------------------------------------------------------------------------
-------------------------

State = ------------

Date = ------------------
1

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

  This letter responds to a letter dated December 22, 2009, written on behalf of X,

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

                                                FACTS

    X was incorporated under State law on Date 1. X’s sole shareholder, A, intended

for X to be an S corporation effective Date 1. However, X’s Form 2553, Election by a
Small Business Corporation was not timely filed. X requests a ruling that it will be
recognized as an S corporation effective Date 1.

                                        LAW AND ANALYSIS

  Section 1362(a)(1) provides that a small business corporation may elect to be an

S corporation.
PLR-100148-10 2

    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.

   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 taxable year and on or before the 15th day of the third
month of the following taxable year, then the election is 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 the 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

X has established reasonable cause for failing to timely make an S corporation election
effective Date 1. Thus, we conclude that X is eligible for relief under § 1362(b)(5).
Accordingly, if X makes an election to be an S corporation by filing a completed Form
2553 with the appropriate service center effective Date 1 within 60 days following the
date of this letter, then such election will be treated as timely made. A copy of this letter
should be attached to the Form 2553 filed with the service center. 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 X
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)

provides that it may not be used or cited as precedent.
PLR-100148-10 3

   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.

                                 Sincerely,


                                   /s/

                                 James A. Quinn
                                 Senior Counsel, Branch 3
                                 Office of Associate Chief Counsel
                                 (Passthroughs & Special Industries)

Enclosures (2):

  A copy of this letter
  A copy for § 6110 purposes