PLR 201321008: IRS grants relief for a late S corporation election

Plain-English summary

The IRS granted a corporation relief for failing to timely file its election to be treated as an S corporation. The corporation intended the election to be effective on its incorporation date and established reasonable cause for the late filing. Under IRC § 1362(b)(5), the corporation may be treated as having made the election on time if it files Form 2553 within 120 days and attaches a copy of the ruling. The ruling does not determine whether the corporation otherwise qualifies as an S corporation.

Ruling snapshot

• Question: May the corporation make a late S corporation election effective as of its intended date?
• Outcome: Approved, subject to filing Form 2553 within 120 days.
• Key authorities: IRC §§ 1362(a), 1362(b), 1362(b)(2), and 1362(b)(5)

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 201321008
Third Party Communication: None
Release Date: 5/24/2013
Date of Communication: Not Applicable
Index Number: 1362.01-03
Person To Contact:
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-------------------------------------------------- Refer Reply To:
CC:PSI:B01
PLR-140522-12
Date:
February 06, 2013

LEGEND

X = ---------------------------------------------
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D = ------------------------

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

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

This responds to a letter dated October 17, 2012, submitted on behalf of X, requesting relief under § 1362(b)(5) of the Internal Revenue Code.

FACTS

According to the information submitted, X was incorporated on D under the laws of State. X intended to be treated as an S corporation for Federal tax purposes effective D, but the proper election was not timely filed.

LAW AND ANALYSIS

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.

Section 1362(b)(2) provides that 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. If the election is made after the first two and one-half months of a corporation's taxable year, then the corporation will
PLR-140522-12
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not be treated as an S corporation until the taxable year after the year in which the S election is made.

Section 1362(b)(5) provides that if no election is made pursuant to § 1362(a), or, if made, the election is made after the date prescribed for making such an election, and the Secretary determines there was reasonable cause for the failure to timely make the election, then the Secretary may treat such election as timely made for such taxable year and effective as of the first day of that year.

X did not file a timely election to be treated as an S corporation under § 1362(a) effective D. X has, however, established reasonable cause for not making a timely election and is entitled to relief under § 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 D if, within 120 days from the date of this letter, X submits a properly completed Form 2553, with a copy of this letter attached, to the appropriate service center.

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 concerning whether X otherwise qualifies as 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.

Sincerely,

Joy C. Spies
Joy C. Spies
Senior Technician Reviewer, Branch 1
Office of the Associate Chief Counsel
(Passthroughs & Special Industries)

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