Foreign entity gets 120 days to make its partnership election

Plain-English summary

A foreign eligible entity intended to elect partnership classification for federal tax purposes but failed to timely file Form 8832. It requested discretionary relief under the regulatory-election extension rules. The IRS found that the entity acted reasonably and in good faith and that relief would not prejudice the government. It granted 120 days to file Form 8832 with the requested retroactive effective date. The relief is conditional on the entity filing all required federal income-tax and information returns within that period, including any chapter 3 withholding and § 6038 filings. The entity also must provide its partners the information necessary to file consistent original or amended returns.

Ruling snapshot

• Question: May the foreign eligible entity receive an extension to elect partnership classification effective on the requested prior date?
• Outcome: Approved
• Key authorities: Treas. Reg. §§ 301.7701-3 and 301.9100-1 through 301.9100-3

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201443008 Third Party Communication: None
Release Date: 10/24/2014 Date of Communication: Not Applicable
Index Number: 9100.00-00, 7701.00-00,
9100.31-00 Person To Contact:
---------------------, ID No. -----------------
------------------------------------------------------------ Telephone Number:
----------- --------------------
---------------------------------- Refer Reply To:
---------------------------------- CC:PSI:B02
-------------------------------- PLR-106874-14
Date:
May 28, 2014

                                                    Legend

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

Country = -------

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

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

   This is in response to a letter dated February 12, 2014, and subsequent

correspondence, submitted on behalf of X by X’s authorized representative, requesting
that the Service grant X an extension of time under § 301.9100-1(c) of the Procedure
and Administration Regulations to elect to treat X as a partnership for federal tax
purposes.

    X was formed on Date, under the laws of Country. X is a foreign entity eligible to

be treated as a partnership for U.S. income tax purposes. However, X failed to timely
file Form 8832, Entity Classification Election electing to treat X as a partnership for
federal tax purposes effective Date.

   Section 301.7701-3(a) provides in part that a business entity that is not classified

as a corporation under § 301.7701-2(b)(1), (3), (4), (5), (6), (7) or (8) (an eligible entity)
can elect its classification for federal tax purposes. An eligible entity with at least two
members can elect to be classified as either an association (and thus a corporation
under § 301.7701-2(b)(2)) or a partnership.

PLR-106874-14 2

    Section 301.7701-3(b)(2) provides guidance on the classification of a foreign

eligible entity for federal tax purposes. Unless the entity elects otherwise, a foreign
eligible entity is treated as an association if all members have limited liability. A foreign
eligible entity is treated as a partnership if it has two or more members and at least one
member does not have limited liability. A foreign eligible entity with more than one
owner may elect to be treated as a partnership pursuant to the rules under
§ 301.7701-3(c).

    Section 301.7701-3(c)(1)(iii) provides than an entity classification election must

be filed on Form 8832 and can be effective up to 75 days prior to the election filing date
or more than 12 months after the election filing date.

   Section 301.9100-1(c) provides that the Commissioner may grant a reasonable

extension of time to make a regulatory election, or a statutory election (but no more than
six months except in the case of a taxpayer who is abroad), under all subtitles of the
Internal Revenue Code except subtitles, E, G, H, and I. Section 301.9100-1(b) defines
the term “regulatory election” as including an election whose due date is prescribed by a
regulation published in the Federal Register.

  Sections 301.9100-1 through 301.9100-3 provide the standards by which the

Commissioner will determine whether to grant an extension of time to make an election.
Section 301.9100-2 provides the rules governing automatic extensions of time for
making certain elections. Section 301.9100-3 describes the conditions under which the
Commissioner will grant requests for relief that do not meet the requirements of
§ 301.9100-2. Requests for relief under § 301.9100-3 will be granted when the
taxpayer provides evidence to establish that (1) the taxpayer acted reasonably and in
good faith, and (2) granting relief will not prejudice the interests of the government.

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

the requirements of § 301.9100-3 have been satisfied. Accordingly, X is granted an
extension of 120 days from the date of this letter to file Form 8832 with the appropriate
service center to elect to be classified as a partnership effective Date. A copy of this
letter should be attached to the Form 8832.

  This ruling is contingent on X filing within 120 days of this letter all required

Federal income tax and information returns (including withholding tax returns required
under chapter 3 of the Internal Revenue Code) consistent with the requested relief
being effective on Date. X’s filing obligations may include those required under § 6038
and the regulations thereunder. X also must provide its partners all the information
necessary to file returns (including amended returns) consistent with this classification.
A copy of this letter should be attached to any late or amended returns.

   Except as expressly provided herein, we express or imply no opinion concerning

the tax consequences of any aspect of any transaction or item discussed or referenced

PLR-106874-14 3

in this letter. Section 6110(k)(3) of the Internal Revenue Code 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.

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

letter will be sent to X's authorized representative.

                                     Sincerely,

                                     Associate Chief Counsel
                                     (Passthroughs & Special Industries)



                                By: _______________________________

                                     Melissa Liquerman
                                     Branch Chief, Branch 2
                                     Office of the Associate Chief Counsel
                                     (Passthroughs & Special Industries)