Late disregarded-entity election granted

Plain-English summary

A foreign limited company with one nonresident-alien owner intended to elect disregarded-entity treatment but did not file Form 8832 on time. The IRS concluded that the requirements for discretionary filing relief under Treasury Regulation sections 301.9100-1 and 301.9100-3 were met. It granted the company 120 days to file the election with the requested effective date. Relief was conditioned on the company and its owner filing all required federal tax and information returns for open years consistently with the election.

Ruling snapshot

• Question: Whether the foreign entity should receive more time to elect disregarded-entity status
• Outcome: Approved, with a 120-day filing period and return-filing conditions
• Key authorities: Treas. Reg. §§ 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: 201539026                                                Third Party Communication: None
Release Date: 9/25/2015                                          Date of Communication: Not Applicable
Index Numbers: 7701.00-00, 9100.31-00
                                                                 Person To Contact:
-------------------------                                        -----------------------, ID No. -------------------
------------------------------                                   ---------------------------------------------------
----------------------------                                     Telephone Number:
 -----------------------------------                             ----------------------
                                                                 Refer Reply To:
                                                                 CC:PSI:B03
                                                                 PLR-104306-15
                                                                 Date: June 9, 2015



                                                       LEGEND

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

Owner             =                  -------------------
-------------------------------------------------------------

Country           =                    --------

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

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


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

      This letter responds to a letter dated January 21 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 on D1 as a limited
company under the laws of Country. X is currently owned by an individual nonresident
alien, Owner. X represents that it is a foreign entity eligible to elect to be classified as a
disregarded entity for federal tax purposes. However, X failed to file timely Form 8832,
Entity Classification Election, to be classified as a disregarded entity for federal tax
purposes effective D2.
PLR-104306-15                                  2


                                   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.

       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
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.
PLR-104306-15                                 3


       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 submitted and the representations made, we conclude
that X has satisfied the requirements of §§ 301.9100-1 and 301.9100-3. As a result, X
is granted an extension of time of 120 days from the date of this letter to make an
election to be treated as a disregarded entity for federal tax purposes effective D2. X
must make the election by filing a properly executed Form 8832 with the appropriate
service center. A copy of this letter should be attached to the form.

        This ruling is contingent on X and Owner filing within 120 days from the date of
this letter all required federal income tax and information 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 representatives.
PLR-104306-15                               4

       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/_________________________
                                            Richard T. Probst
                                            Senior Technician Reviewer, Branch 3
                                            Office of the Associate Chief Counsel
                                            (Passthroughs & Special Industries)



Enclosures: Copy of this letter
            Copy for § 6110 purposes