Late ESBT election does not terminate S corporation status

Plain-English summary

Shares of an S corporation passed to a trust after a shareholder died. The trust remained an eligible testamentary-trust shareholder for two years, then filed a qualified subchapter S trust election even though it qualified only as an electing small business trust. Because no timely ESBT election was filed, the corporation's S election terminated when the two-year period ended. The IRS found the termination inadvertent because it was not tax-motivated, the corporation and shareholders consistently filed as an S corporation, and they agreed to any required adjustments. The corporation would continue to be treated as an S corporation if the trustee filed an ESBT election effective on the termination date within 120 days.

Ruling snapshot

• Question: Could an S corporation receive inadvertent-termination relief after a trust filed the wrong shareholder election?
• Outcome: Approved, conditioned on filing an ESBT election within 120 days
• Key authorities: IRC §§ 1361(c)(2), 1361(e), and 1362(f); Treas. Reg. §§ 1.1361-1(m)(2) and 1.1362-4

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201505016 Third Party Communication: None
Release Date: 1/30/2015 Date of Communication: Not Applicable
Index Number: 1362.04-00
Person To Contact:
-------------------------------------------- --------------------------, ID No. --------------
--------------------------------------- Telephone Number:
----------------------- ----------------------
-------------------------------- Refer Reply To:
CC:PSI:B03
PLR-122794-14
Date:
September 08, 2014

LEGEND

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

Trust = ---------------------------------------------------------------------------------------------
---------------------------

Shareholder = ------------------

State = ---------

D1 = ----------------------

D2 = ------------------

D3 = ----------------------

D4 = ----------------------

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

   This letter responds to a letter dated June 4, 2014, and subsequent

correspondence, submitted on behalf of X by its authorized representative requesting a
ruling under § 1362(f) of the Internal Revenue Code (Code).

                                                FACTS

PLR-122794-14 2

  The information submitted states that X was organized under the laws of State

on D1 and elected to be an S corporation effective D1. Shareholder died on D2, and,
on D3, his shares in X were transferred to Trust. During the two years between D3 and
D4, Trust was an eligible shareholder by reason of § 1361(c)(2)(A)(iii).

   Before D4, Trust filed timely an election to be a qualified Subchapter S trust

(QSST); however, Trust was not eligible to be a QSST. Trust was eligible to be an
electing small business trust (ESBT), but did not file timely an ESBT election.
Therefore, on D4, X’s S corporation election terminated.

   X represents that the termination was not motivated by tax avoidance or

retroactive tax planning. X further represents that X and its shareholders have filed
consistently with the treatment of X as an S corporation since D1. X and its
shareholders have agreed to make any adjustments that the Commissioner may
require, consistent with the treatment of X as an S corporation.

                              LAW AND ANALYSIS

  Section 1362(a) 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.

    Section 1361(a)(1) provides that the term “S corporation” means, with respect to

any taxable year, a small business corporation for which an election under § 1362(a) is
in effect for such year.

    Section 1361(b)(1) provides that the term “small business corporation” means a

domestic corporation which is not an ineligible corporation and which does not (A) have
more than 100 shareholders, (B) have as a shareholder a person (other than an estate,
a trust described in § 1361(c)(2), or an organization described in § 1361(c)(6)) who is
not an individual, (C) have a nonresident alien as a shareholder, and (D) have more
than one class of stock.

    Section 1361(e) defines an ESBT. Section 1361(e)(1)(A) provides that, except as

provided in § 1362(e)(2)(B), an ESBT means any trust if (i) such trust does not have as
a beneficiary any person other than (I) an individual, (II) an estate, (III) an organization
described in § 170(c)(2), (3), (4), or (5), or (IV) an organization described in § 170(c)(1)
which holds a contingent interest in such trust and is not a PCB, (ii) no interest in such
trust was acquired by purchase, and (iii) an election under § 1361(e) applies to such
trust. Section 1361(e)(3) provides that an election under § 1361(e) shall be made by the
trustee.

 Section 1.1361-1(m)(2)(i) provides that the trustee of an ESBT must make the

ESBT election by signing and filing, with the service center where the S corporation files

PLR-122794-14 3

its income tax return, a statement that meets the requirements of § 1.1361-1(m)(2)(ii).

   Section 1362(d)(2)(A) provides that an election under § 1362(a) will be

terminated whenever (at any time on or after the first day of the first taxable year for
which the corporation is an S corporation) such corporation ceases to be a small
business corporation.

    Section 1362(f) provides, in relevant part, that if (1) an election under §§ 1362(a)

by any corporation was terminated under § 1362(d)(2) or (3), (2) the Secretary
determines that the circumstances resulting in the termination were inadvertent, (3) no
later than a reasonable period of time after discovery of the circumstances resulting in
the termination, steps were taken (A) so that the corporation is a small business
corporation, and (4) the corporation and each person who was a shareholder of the
corporation at any time during the period specified pursuant to § 1362(f), agrees to
make such adjustments (consistent with the treatment of the corporation as an S
corporation) as may be required by the Secretary with respect to such period, then,
notwithstanding the circumstances resulting in the termination, the corporation will be
treated as an S corporation during the period specified by the Secretary.

   Section 1.1362-4(b) provides, in relevant part, that for purposes of § 1.1362-4(a),

the determination of whether a termination was inadvertent is made by the
Commissioner. The corporation has the burden of establishing that under the relevant
facts and circumstances the Commissioner should determine that the termination was
inadvertent. The fact that the terminating event was not reasonably within the control of
the corporation or was not part of a plan to terminate the election, or the fact that the
terminating event or circumstance took place without the knowledge of the corporation,
notwithstanding its due diligence to safeguard itself against such an event or
circumstance, tends to establish that the termination was inadvertent.

   Section 1.1362-4(d) provides, in part, that the Commissioner may require any

adjustments that are appropriate. In general, the adjustments should be consistent with
the treatment of the corporation as an S corporation during the period specified by the
Commissioner.

                                  CONCLUSION

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

that X’s S corporation election terminated on D4. We also conclude that the
circumstances resulting in the termination were inadvertent within the meaning of
§ 1362(f). Accordingly, under § 1362(f), X will be treated as an S corporation from D4
and thereafter, provided X’s S corporation election was otherwise valid and has not
otherwise terminated under § 1362(d).

PLR-122794-14 4

    This ruling is conditioned on the trust of Trust filing an ESBT election, effective

D4, with the appropriate service center within 120 days of the date of this letter. A copy
of this letter should be attached to the ESBT election.

   Except as specifically ruled above, we express no opinion concerning the federal

tax consequences of the facts described above under any other provisions of the Code.
Specifically, we express no opinion regarding X’s eligibility to be an S corporation.

  This ruling is directed only to the taxpayer that requested it. Section 6110(k)(3)

provides that it may not be used or cited as precedent.

  In accordance with a power of attorney on file with this office, we are sending a

copy of this letter to X’s authorized representative.

                                   Sincerely,



                                   Brad Poston
                                   Senior Counsel, Branch 3
                                   Office of the Associate Chief Counsel
                                   (Passthroughs and Special Industries)

Enclosures (2):

   Copy of this letter
   Copy for § 6110 purposes