PLR 1034014: IRS grants relief for a late S corporation election

Plain-English summary

The IRS considered a corporation’s request for relief after its S corporation election was not timely filed. The corporation established reasonable cause for the late election under section 1362(b)(5). The IRS ruled that the corporation would be recognized as an S corporation effective on the requested date, provided it otherwise qualified as a subchapter S corporation. It also required the corporation to send an original Form 2553 and a copy of the ruling to the relevant Service Center within 60 days.

Ruling snapshot

• Question: May a corporation’s late S corporation election be treated as timely after it establishes reasonable cause?
• Outcome: Approved
• Key authorities: IRC § 1362(b)(5); IRC § 6110(k)(3)

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201034014 Third Party Communication: None
Release Date: 8/27/2010 Date of Communication: Not Applicable
Person To Contact:
Index Number: 1362.01-03 --------------------, ID No. -------------
Telephone Number:
---------------------
---------------- -------------- Refer Reply To:
-------------------------------------------------- CC:PSI:B01
------------------------------- PLR-154215-09
------------------------------- Date:
May 12, 2010

Legend:

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

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

               Year 1=                    -------

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

Dear --------:

    This letter is in response to your request, on behalf of X, dated November 24,

2009, for a written determination granting relief under section 1362(b)(5) of the Internal
Revenue Code.

                                                    Facts

    X was incorporated under the laws of State in Year 1. The shareholder of X

intended that X elect to be treated as an S corporation effective Date 1. However, the
election to be treated as an S corporation, effective Date 1, was not timely filed.

                                            Law and Analysis

     Section 1362(a) of the Code provides that a small business corporation can elect

to be treated as an S corporation.
PLR-154215-09 2

    Section 1362(b) of the Code provides guidance on when the S election becomes

effective. If an S election is made within the first two and one-half months of a
corporation=s taxable year, then that corporation will be treated as an S corporation for
the year in which the election was made. If the corporation makes an election after the
first two and one-half months of a corporation=s taxable year, then the corporation will
generally not be treated as an S corporation until the following taxable year.

    Section 1362(b)(5) of the Code provides that if no election is made pursuant to

section 1362(a), or if the election is made after the date prescribed for making such an
election, and the Secretary determined reasonable cause existed for the failure to timely
make the election, then the Secretary can treat such an election as being timely made
for that taxable year and effective as of the first day of that taxable year.

   X did not file a timely election to be treated as an S corporation under section

1362(a). X has, however, established reasonable cause for not making a timely S
election. Therefore, X is entitled to relief under section 1362(b)(5).

                                   Conclusion

   Based solely on the facts submitted and representations made, and provided that

X otherwise qualifies as a subchapter S corporation, we conclude that X will be
recognized as an S corporation effective Date 1. An original Form 2553 along with a
copy of this letter must be forwarded to the relevant Service Center within sixty (60)
days from the date of this letter.

   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.

  This ruling is directed only to the taxpayer(s) requesting it. Section 6110(k)(3) of

the Code provides that it may not be used or cited as precedent.
PLR-154215-09 3

    Pursuant to the Power of Attorney on file with this office, we will send a copy of

this ruling to your representative.

                                   Sincerely,

                                     /s/

                                   Faith P. Colson
                                   Senior Counsel, Branch 1
                                   (Passthroughs & Special Industries)

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

cc: