PLR 1349007: IRS grants relief for a late S corporation election

Plain-English summary

The IRS granted a corporation relief for failing to timely elect S corporation status. The corporation established reasonable cause for the late election and may be treated as an S corporation from its intended effective date if it files a properly completed Form 2553 within 120 days and attaches a copy of the ruling. The relief assumes that the corporation otherwise qualifies as an S corporation. The ruling expresses no opinion on any other federal tax consequences.

Ruling snapshot

• Question: May the corporation’s late election to be treated as an S corporation be treated as timely under IRC § 1362(b)(5)?
• Outcome: Approved, subject to filing Form 2553 within 120 days.
• Key authorities: IRC §§ 1362(a), 1362(b)(2), and 1362(b)(5)

Full text (IRS public release)

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Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201349007 Third Party Communication: None
Release Date: 12/6/2013 Date of Communication: Not Applicable
Index Number: 1362.01-03
Person To Contact:
----------------------------------- ----------------, ID No. ------------------
------------------------------------------------- Telephone Number:
-------------------------------------------- ----------------------
------------------------------------- Refer Reply To:
CC:PSI:B01
PLR-117022-13
Date:
July 31, 2013

LEGEND

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

D = ---------------------

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

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

This responds to a letter dated March 1, 2013, 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
PLR-117022-13 2

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 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, Election by a Small Business Corporation,
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.

In accordance with the power of attorney on file with this office, a copy of this letter is
being sent to the taxpayer’s authorized representative.

                                    Sincerely,

                                    Laura Fields
                                    Laura Fields
                                    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
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