Invalid QSub election receives inadvertent relief

Plain-English summary

An S corporation intended to acquire all shares of a subsidiary and elected qualified subchapter S subsidiary status effective on the acquisition date. The election was invalid because the parent did not yet own 100% of the subsidiary’s stock. The parties represented that the failure was inadvertent and not motivated by tax avoidance or retroactive planning, and they agreed to required adjustments. The IRS treated the subsidiary as a QSub from the intended date, provided the election was otherwise valid.

Ruling snapshot

• Question: May the subsidiary be treated as a QSub despite the parent’s inadvertent failure to own all shares on the election date?
• Outcome: Approved, provided the QSub election is otherwise valid.
• Key authorities: IRC §§ 1361(b)(3), 1362(d)(2), and 1362(f)

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 201519016
Third Party Communication: None
Release Date: 5/8/2015
Date of Communication: Not Applicable
Index Number: 1362.00-00, 1362.01-00,
1362.04-00
Person To Contact:
-------------------------, ID No. ------------
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Telephone Number:
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Refer Reply To:
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CC:PSI:B01
PLR-135233-14
Date:
January 28, 2015

Legend:

X = -----------------------------------------------------
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Y = ---------------------------------------------------
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Date 1 = ------------------------

Date 2 = ---------------------

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

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

This letter responds to a letter dated September 16, 2014, and subsequent correspondence, written on behalf of X, requesting a ruling under § 1362(f) of the Internal Revenue Code.

Facts

The information submitted states that X was incorporated under the laws of State and made an election to be treated as an S corporation effective Date 1. On Date 2, X intended to acquire all of the outstanding shares of Y and made an election to treat Y as a qualified subchapter S subsidiary (QSub) effective Date 2. X's election to treat Y as a QSub was inadvertently invalid on Date 2 because X did not own 100% of Y stock. In order for X to own 100% of Y stock, X proposes a transaction under §§ 368(a)(1)(D)
PLR-135233-14
2

and 355.

X represents that the invalid election was not motivated by tax avoidance or retroactive tax planning. X and its shareholders agree to make any adjustments that the Commissioner may require, consistent with the treatment of X as an S corporation.

Law and Analysis

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)(B) provides that, for purposes of subchapter S, the term “small business corporation” means a domestic corporation that is not an ineligible corporation and that does not, among other requirements, 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.

Section 1361(b)(3)(B) defines a QSub as a domestic corporation that is not an ineligible corporation, if 100 percent of the stock of the corporation is owned by an S corporation, and the S corporation elects to treat the corporation as a QSub.

Section 1362(d)(2)(A) provides that an election under § 1362(a) shall be terminated whenever (at any time on or after the first day of the first taxable year for which a corporation is an S corporation) such corporation ceases to be a small business corporation. Section 1362(d)(2)(B) provides that the termination shall be effective on and after the date of cessation.

Section 1362(f) provides that if (1) an election under § 1362(a) by any corporation (A) was not effective for the taxable year for which it was made (determined without regard to § 1362(b)(2)) by reason of a failure to meet the requirements of § 1361 (b) or to obtain shareholder consents, or (B) was terminated under § 1362(d)(2) or (3), (2) the Secretary determines that the circumstances resulting in such ineffectiveness or termination were inadvertent, (3) no later than a reasonable period of time after discovery of the event resulting in the ineffectiveness or termination, steps were taken (A) so that the corporation is a small business corporation, or (B) to acquire the required shareholder consents, 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 such ineffectiveness or termination, the corporation shall be treated as an S corporation during the period specified by the Secretary.
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Conclusion

Based solely on the information submitted and the representations made, we conclude that X's election to treat Y as a QSub was invalid on Date 2, under § 1362(d)(2), because X did not own all the shares of Y, and that X's election to treat Y as a QSub was inadvertently invalid within the meaning of § 1362(f). Accordingly, Y will be treated as a QSub of X as of Date 2 and thereafter, provided that X’s election to treat Y as a QSub is otherwise valid.

Except as specifically ruled upon above, no opinion is expressed as to the federal income tax consequences of the facts described above under any other provision of the code. In particular, no opinion is expressed or implied as to whether X otherwise qualifies as a subchapter S corporation under § 1361, whether Y otherwise qualifies as a qualified subsidiary under § 1361, or whether the proposed transaction qualifies under
§§ 368(a)(1)(D) and 355.

This ruling is directed only to the taxpayer who requested it. Section 6110(k)(3) of the Code provides that it may not be used or cited as precedent.

Pursuant to a power of attorney on file with this office, a copy of this letter is being forwarded to X's authorized representative.

Sincerely,

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

Enclosures (2):
A copy of this letter
A copy for § 6110 purposes