PLR 1037023: IRS granted relief for a late S corporation election

Plain-English summary

The IRS granted relief to a company that failed to timely file Form 2553 to elect S corporation status. The company represented that it had consistently reported its tax matters in accordance with its intended S corporation status. The IRS found reasonable cause under IRC § 1362(b)(5) and ruled that the election would be treated as timely if the company filed the completed form with the appropriate service center within 60 days of the letter.

Ruling snapshot

• Question: Could the company obtain relief for its late S corporation election?
• Outcome: Approved
• Key authorities: IRC §§ 1362(a), 1362(b)(1), 1362(b)(3), and 1362(b)(5)

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201037023 Third Party Communication: None
Release Date: 9/17/2010 Date of Communication: Not Applicable
Index Number: 1362.01-03
Person To Contact:
---------------------------------------- ------------------------, ID No. ------------------
----------------------------------------- ----------------------------------------------------
-------------------------------- Telephone Number:
------------------------------ ---------------------
Refer Reply To:
CC:PSI:B03
PLR-153858-09
Date:
June 10, 2010

Legend:

Company = -------------------------------------------------------------------------------------------------
-----------------------

State = --------

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

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

  This letter responds to a letter dated October 19, 2009, and subsequent

correspondence submitted on behalf of Company, requesting a ruling under
§ 1362(b)(5) of the Internal Revenue Code.

                                              Facts

    Company was incorporated under the laws of State on Date. Company’s

shareholders intended Company to be treated as an S corporation as of Date. A Form
2553, Election by a Small Business Corporation, was not timely filed. Company
represents that it has reported consistently with Company’s intended status as an S
Corporation. Company requests a ruling that it will be recognized as an S corporation
effective Date.

                                        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.
PLR-153858-09 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 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).

                                    Conclusion

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

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

   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.
PLR-153858-09 3

     In accordance with the power of attorney on file with this office, a copy of this

letter is being sent to your authorized representative.

                                    Sincerely,

                                     /s/

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

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