PLR 1031010: IRS allowed a late S corporation election

Plain-English summary

The IRS ruled that a corporation could make a late election to be treated as an S corporation. The corporation had intended the election to take effect on a specified date, but its Form 2553 was not filed on time. The IRS found reasonable cause for the late filing under IRC § 1362(b)(5) and treated the election as timely if the corporation filed the completed form within 60 days of the letter date. The letter had to be attached to Form 2553.

Ruling snapshot

• Question: Could the corporation receive relief for its late S corporation election?
• Outcome: Approved
• Key authorities: IRC § 1362(b)(5)

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201031010 Third Party Communication: None
Release Date: 8/6/2010 Date of Communication: Not Applicable
Index Number: 1362.01-03
Person To Contact:
------------------------------------ --------------, ID No. -------------
------------------------------------------------- Telephone Number:
------------------------------------ ---------------------
-------------------------------- Refer Reply To:
CC:PSI:B02
PLR-112927-10
Date:
April 01, 2010

Legend

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

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

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

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

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

The information submitted states that X was incorporated in State on Date 1. It was
intended that X elect S corporation treatment effective Date 1; however, a Form 2553,
Election by a Small Business Corporation, was not timely filed for X.

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

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.
PLR-112927-10 2

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.

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 Date 1. Accordingly, provided that 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 for X's taxable year beginning Date 1. 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.

                                  Sincerely,


                                  Bradford R. Poston
                                  Senior Counsel, Branch 2
                                  (Passthroughs & Special Industries)

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