Foreign entity may make late partnership election

Plain-English summary

A foreign eligible entity whose owners had limited liability intended to be treated as a partnership for U.S. federal tax purposes but inadvertently failed to file Form 8832 on time. The IRS found that the entity satisfied the standards for regulatory election relief. It granted until the earlier of 120 days from the ruling or expiration of the relevant limitations period to file the election. The relief was conditioned on timely filing all required partnership and withholding returns consistently with partnership status.

Ruling snapshot

• Question: Could the foreign entity file a late Form 8832 electing partnership classification from its intended effective date?
• Outcome: Approved
• Key authorities: Treas. Reg. §§ 301.7701-2, 301.7701-3, 301.9100-1, 301.9100-3

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201546002 Third Party Communication: None
Release Date: 11/13/2015 Date of Communication: Not Applicable
Index Number: 7701.00-00, 9100.31-00
Person To Contact:
-------------------------- ---------------------, ID No. ------------------
------------------------------------------ Telephone Number:
--------------------------------------------- ----------------------
------------------------------------ Refer Reply To:
CC:PSI:B01
PLR-103856-15
Date:
August 03, 2015

X =

Country =

d1 =

Year 1 =

Year 2 =

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

This letter responds to a letter dated January 16, 2015, and subsequent
correspondence, submitted on behalf of X, requesting a ruling under §§ 301.9100-1 and
301.9100-3 of the Procedure and Administration Regulations that X be granted an
extension of time to file an election to be classified as a partnership under § 301.7701-
3(c) effective d1.

FACTS

X is an entity formed under the laws of Country. X‘s owners have limited liability
as a result of their investment in X under the laws of Country. X is not classified as a
corporation under § 301.7701-2(b)(1), (3), (4), (5), (6), (7) or (8). X intended that it be
treated as a partnership for U.S. federal tax purposes effective d1. However, due to
inadvertence, X failed to file a timely Form 8832, Entity Classification Election.

LAW AND ANALYSIS

Section 301.7701-3(a) provides 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.

Section 301.7701-3(b)(2)(i) provides that, unless it 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(c)(1)(i) provides that an eligible entity may elect to be
classified other than as provided in § 301.7701-3(b) by filing Form 8832 with the service
center designated on Form 8832.

Section 301.7701-3(c)(1)(iii) provides 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 date is specified on the election form. The effective date specified on
Form 8832 cannot be more than 75 days prior to the date on which the election is filed
and cannot be more than 12 months after the date on which the election is filed.

Section 301.9100-1(c) provides that the Commissioner has discretion to grant a
reasonable extension of time under the rules set forth in §§ 301.9100-2 and 301.9100-3,
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 Code, except
subtitles E, G, H, and I. Section 301.9100-1(b) defines a regulatory election to include
an election whose due date is prescribed by a regulation published in the Federal
Register.

Section 301.9100-2 provides the rules governing automatic extensions of time for
making certain elections. Section 301.9100-3 sets forth the standards the
Commissioner will use to determine whether to grant an extension 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 subject to § 301.9100-3
will be granted when the taxpayer provides evidence (including affidavits described in
§ 301.9100-3(e)) to establish to the satisfaction of the Commissioner that (1) the
taxpayer acted reasonably and in good faith, and (2) granting relief will not prejudice the
interests of the Government.

CONCLUSION

Based on the facts submitted and the representations made, we conclude that
the requirements of §§ 301.9100-1 and 301.9100-3 have been satisfied. As a result, X
is granted an extension of time of the earlier of 120 days from the date of this letter or
the expiration of X’s statute of limitations for Year 1 to file Form 8832 with the
appropriate service center and to elect to be classified as a partnership for federal tax
purposes effective d1. A copy of this letter should be attached to the Form 8832. A
copy is enclosed for that purpose.

This ruling is contingent upon X filing, within the earlier of 120 days from the date
of this letter or the expiration of the statute of limitations for the relevant taxable year,
Forms 1065, U.S. Return of Partnership Income, and Forms 8804, Annual Return for
Partnership Withholding Tax, for all required taxable years consistent with X having
made a timely election effective d1 to be treated as a partnership for U.S. federal
income tax purposes. If this condition is not met, then this ruling is null and void. A
copy of this letter should be attached to any such returns.

Except as expressly set forth above, we express or imply no opinion concerning
the federal tax consequences of the facts discussed above under any other provision of
the Code.

This ruling is directed only to the taxpayer requesting 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,

Associate Chief Counsel
(Passthroughs & Special Industries)

By: Faith P. Colson
Faith P. Colson
Senior Counsel, Branch 1
Office of the Associate Chief Counsel
(Passthroughs & Special Industries)

Enclosures (2)
Copy of this letter
Copy for § 6110 purposes

cc: