PLR 1029010: IRS grants late entity-classification and S corporation election relief

Plain-English summary

A limited liability company asked for more time to elect classification as an association taxable as a corporation and to file a late S corporation election. The company had intended both elections to be effective on the same date but inadvertently failed to timely file Forms 8832 and 2553. The IRS granted a 60-day extension for the entity-classification election and found reasonable cause for the late S corporation election. The company would be recognized as an S corporation from the requested effective date if it otherwise qualified and filed the completed Form 2553 within 60 days.

Ruling snapshot

• Question: Could the company receive relief for its late entity-classification and S corporation elections?
• Outcome: approved, subject to filing Forms 8832 and 2553 within 60 days
• Key authorities: IRC §§ 1361(b), 1362(a)(1), 1362(b)(1), 1362(b)(3), and 1362(b)(5); Treas. Reg. §§ 301.7701-3 and 301.9100-1 through 301.9100-3; IRC § 6110(k)(3)

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201029010 Third Party Communication: None
Release Date: 7/23/2010 Date of Communication: Not Applicable
Index Numbers: 1362.01-03, 9100.31-00
Person To Contact:
----------------------------- ------------------------, ID No. ------------------
------------------------ ----------------------------------------------------
----------------- Telephone Number:
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Refer Reply To:
CC:PSI:B03
PLR-147535-09
Date:
April 22, 2010

                                               Legend

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

Date = ------------------

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

A = ------------------------------------------------------------------------------------------------------
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B = ------------------------------------------------------------------------------------------------------
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Dear --------------:

   This letter responds to a letter dated September 23, 2009, and subsequent

correspondence, submitted on behalf of X, requesting 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 an association taxable as a corporation for federal tax
purposes, as well as relief to file a late S corporation election under § 1362(b)(5) of the
Internal Revenue Code (Code).

                                                 Facts

   X was formed on Date as a State limited liability company. X’s members, A and

B, intended that X be treated as an S corporation for federal tax purposes effective
Date. However, X inadvertently failed to timely file a Form 8832, Entity Classification
Election, and a Form 2553, Election by a Small Business Corporation.

PLR-147535-09 2

                                  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.

   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 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).

    Section 301.7701-3(a) provides 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) can
elect its classification for federal tax purposes as provided in § 301.7701-3. An eligible
entity with at least two members can elect to be classified as either an association (and
thus a corporation under § 301.7701-2(b)(2)) or a partnership.

   Section 301.7701-3(b)(1) provides that except as provided in § 301.7701-3(b)(3),

unless the entity elects otherwise, a domestic eligible entity is (i) a partnership if it has
two or more members; or (ii) disregarded as an entity separate from its owner if it has a
single owner.

    Section 301.7701-3(c)(1)(i) provides, in part, that an eligible entity may elect to

be classified other than as provided under § 301.7701-3(b), or to change its
classification, by filing Form 8832 with the service center designated on Form 8832.

    Section 301.7701-3(c)(1)(iii) provides that an election under § 301.7701-3(c)(1)(i)

will be effective on the date specified by the entity on Form 8832 or on the date filed if
no such date is specified on the election form. The effective date specified on
Form 8832 can not be more than 75 days prior to the date on which the election is filed
and can not be more than 12 months after the date on which the election is filed. If an
election specifies an effective date more than 75 days prior to the date on which the
election is filed, it will be effective 75 days prior to the date it was filed.

PLR-147535-09 3

   Section 301.7701-3(c)(1)(v)(C) provides that an eligible entity that timely elects to

be an S corporation under § 1362(a)(1) is treated as having made an election under
§ 301.7701-3 to be classified as an association, provided that (as of the effective date of
the election under § 1362(a)(1)) the entity meets all other requirements to qualify as a
small business corporation under § 1361(b). Subject to § 301.7701-3(c)(1)(iv), the
deemed election to be classified as an association will apply as of the effective date of
the S corporation election and will remain in effect until the entity makes a valid election,
under § 301.7701-3(c)(1)(i), to be classified as other than an association.

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

extension of time under the rules set forth in §§ 301.9100-2 and 301.9100-3 to make a
regulatory election, or a statutory election (but not more than 6 months except in the
case of a taxpayer who is abroad), under all subtitles of the Code except subtitles E, G,
H, and I.

   Section 301.9100-2 provides automatic extensions of time for making certain

elections. Section 301.9100-3 provides extensions of time for making elections that do
not meet the requirements of § 301.9100-2.

    Section 301.9100-3(a) provides that requests for relief subject to § 301.9100-3

will be granted when the taxpayer provides the evidence (including affidavits described
in § 301.9100-3(e)) to establish to the satisfaction of the Commissioner that the
taxpayer acted reasonably and in good faith, and the grant of relief will not prejudice the
interests of the Government.

                                    Conclusion

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

X has satisfied the requirements of §§ 301.9100-1 and 301.9100-3. Accordingly, X is
granted an extension of time of sixty (60) days from the date of this letter to elect to be
treated as an association taxable as a corporation for federal tax purposes effective
Date. The election should be made by filing a properly executed Form 8832 with the
appropriate service center. A copy of this letter should be attached to the election.

   In addition, we conclude that X has established reasonable cause for failing to

timely make an election to be an S corporation. Provided that X otherwise qualifies as
an S corporation, we conclude that X will be recognized as an S corporation effective
Date, if X files a completed Form 2553 effective Date with the appropriate service center
within sixty (60) days from the date of this letter. A copy of this letter should be attached
to the election.

PLR-147535-09 4

   Except as expressly provided herein, we express or imply no opinion concerning

the federal tax consequences of any aspect of any transaction or item discussed or
referenced in this letter. Specifically, we express or imply no opinion 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) of

the Code provides that it may not be used or cited as precedent.

  The rulings contained in this letter are 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 requests, it is subject to verification on
examination.

  In accordance with the power of attorney on file with this office, we are sending a

copy of this letter to your authorized representative.

                                  Sincerely,

                                  Associate Chief Counsel
                                  (Passthroughs and Special Industries)

                                 /s/ Mary Beth Carchia
                             By: _______________________________
                                 Mary Beth Carchia, Senior Technician Reviewer
                                 Branch 3
                                 Office of the Associate Chief Counsel
                                 (Passthroughs & Special Industries)

Enclosures (2)
A copy of this letter
A copy for § 6110 purposes