Late foreign disregarded-entity election granted

Plain-English summary

A foreign limited company had initially elected corporate classification but later intended to become a disregarded entity. It failed to file Form 8832 by the deadline for the requested effective date. The IRS concluded that the company met the standards for discretionary election relief under Treasury Regulation section 301.9100-3. It granted 120 days to file Form 8832 and required the company and its ultimate owners to file all required returns consistently with the disregarded-entity treatment.

Ruling snapshot

• Question: Could the foreign entity make a late election to change from association status to disregarded-entity status?
• Outcome: Approved, with 120 days to file Form 8832 and consistent returns
• Key authorities: Treas. Reg. §§ 301.7701-2, 301.7701-3, 301.9100-1 through 301.9100-3

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201539002
Release Date: 9/25/2015
Index Numbers: 7701.00-00, 9100.31-00

                                                           Person To Contact:

----------------------------------- -----------------------, ID No. -------------------
--------------------------------- ---------------------------------------------------
------------------------------------- Telephone Number:
------------------------------------------------ ----------------------
----------------------------- Refer Reply To:
CC:PSI:B03 – PLR-101971-15
Date: June 23, 2015

                                                LEGEND

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

Region = ------------------

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

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

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

  This letter responds to a letter dated January 8, 2015, submitted on behalf of X

requesting an extension of time under § 301.9100-3 of the Procedure and
Administration Regulations to file an election under § 301.7701-3 to be classified as a
disregarded entity for federal tax purposes.

                                                 FACTS

   The information submitted discloses that X was formed as a limited company on

D1 under the laws of Region and initially elected to be classified as an association for
federal tax purposes effective D1. Subsequently, X intended to be treated as a
disregarded entity for federal tax purposes effective D2. However, X failed to timely file
Form 8832, Entity Classification Election, to be classified as a disregarded entity for
federal tax purposes.
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                                LAW AND ANALYSIS

    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 as provided in
§ 301.7701-3. 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, and an eligible entity with a single owner can elect to be classified as an
association or to be disregarded as an entity separate from its owner.

     Section 301.7701-3(b)(2)(i) provides that, except as provided in § 301.7701-

3(b)(3), unless the entity elects otherwise, a foreign eligible entity is: (A) a partnership if
it has two or more members and at least one member does not have limited liability;
(B) an association if all members have limited liability; or (C) disregarded as an entity
separate from its owner if it has a single owner that does not have limited liability.
Section 301.7701-3(b)(2)(ii) provides, in part, that for purposes of § 301.7701-3(b)(2)(i),
a member of a foreign eligible entity has limited liability if the member has no personal
liability for the debts of or claims against the entity by reason of being a member.

   Section 301.7701-3(c)(1)(i) provides, in part, that, except as provided in

§ 301.7701-3(c)(1)(iv) and (v), an eligible entity may elect to be classified other than as
provided under § 301.7701-3(b), or to change its classification, by filing Form 8832 with
the service center designated on Form 8832.

     Section 301.7701-3(c)(1)(iii) provides, in part, that an election made under

§ 301.7701-3(c)(1)(i) will be effective on the date specified by the entity on Form 8832
or on the date filed if no such date is specified on the election form. The effective date
specified on Form 8832 can not be more than 75 days prior to the date on which the
election is filed and can not be more than 12 months after the date on which the election
is filed.

   Section 301.7701-3(g)(1)(iii) provides that if an eligible entity classified as an

association elects under § 301.7701-3(c)(1)(i) to be disregarded as an entity separate
from its owner, the following is deemed to occur: The association distributes all of its
assets and liabilities to its single owner in liquidation of the association. Section
301.7701-3(g)(3)(i) provides that an election under § 301.7701-3(c)(1)(i) that changes
the classification of an eligible entity for federal tax purposes is treated as occurring at
the start of the day for which the election is effective. Any transactions that are deemed
to occur under § 301.9100-3(g) as a result of a change in classification are treated as
occurring immediately before the close of the day before the election is effective.

   Under § 301.9100-1(c), 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
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Revenue Code (Code) except subtitles E, G, H, and I. Section 301.9100-1(b) provides
that the term “regulatory election” includes 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 the

Commissioner will use to determine whether to grant an extension of time to make an
election. Section 301.9100-2 provides automatic extensions of time for making certain
elections. Section 301.9100-3 provides extensions of time for regulatory elections that
do not meet the requirements of § 301.9100-2.

   Section 301.9100-3(a) provides that requests for relief under § 301.9100-3 will be

granted when the taxpayer provides the evidence (including affidavits described in
§ 301.9100-3(e)) to establish to the satisfaction of the Commissioner that the taxpayer
acted reasonably and in good faith, and the grant of relief will not prejudice the interests
of the Government.

                                  CONCLUSION

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

satisfied the requirements of §§ 301.9100-1 and 301.9100-3. Consequently, X is
granted an extension of time of one hundred twenty (120) days from the date of this
letter to elect under § 301.7701-3 to be treated as a disregarded entity effective D2. X
must file Form 8832 within the extension period with the appropriate service center, with
a copy of this letter attached.

   This ruling is contingent on X and its ultimate owners filing within 120 days from

the date of this letter all required federal income tax and informational returns (including
amended returns) consistent with the requested relief granted in this letter. To the
extent appropriate, these returns may include, but are not limited to, Form 8858,
Information Return of U.S. Persons With Respect to Foreign Disregarded Entities. A
copy of this letter should be attached to any such returns.

   Except for the specific ruling above, we express or imply no opinion concerning

the federal tax consequences of the facts of this case under any other provision of the
Code. In addition, § 301.9100-1(a) provides that the granting of an extension of time for
making an election is not a determination that the taxpayer is otherwise eligible to make
the election.

  This ruling is directed only to the taxpayer requesting it. According to

§ 6110(k)(3) of the Code, this ruling may not be used or cited as precedent.

    Under a power of attorney on file with this office, we are sending a copy of this

letter to X’s authorized representative.
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   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.

                                        Sincerely,

                                        Associate Chief Counsel
                                        (Passthroughs & Special Industries)



                                     By: __/s/___________________________
                                        Holly Porter
                                        Chief, Branch 3
                                        Office of the Associate Chief Counsel
                                        (Passthroughs & Special Industries)

Enclosures: Copy of this letter
Copy for § 6110 purposes