Corporation receives relief for an invalid S election

Plain-English summary

A corporation's S election was invalid because it had an ineligible shareholder when the election took effect. The corporation transferred the shares to eligible shareholders and represented that the defect was inadvertent, not motivated by tax avoidance or retroactive tax planning. It and its shareholders had filed consistently with S corporation treatment and agreed to make any required adjustments. The IRS granted relief under section 1362(f), treating the corporation as an S corporation from its intended effective date, provided the election was otherwise valid and did not later terminate. The corporation must file a corrected Form 2553 within 120 days.

Ruling snapshot

• Question: Could the corporation receive inadvertent-invalid-election relief after an ineligible shareholder made its S election ineffective?
• Outcome: Approved, conditioned on filing a corrected Form 2553 within 120 days.
• Key authorities: IRC §§ 1361 and 1362(f).

Full text (IRS public release)

Internal Revenue Service                                       Department of the Treasury
                                                               Washington, DC 20224

Number: 201636035                                              Third Party Communication: None
Release Date: 9/2/2016                                         Date of Communication: Not Applicable
Index Number: 1362.04-00
                                                               Person To Contact:
                                                               --------------, ID No. ----------------
--------------------------------                               Telephone Number:
-------------------------------------                          --------------------
-------------------                                            Refer Reply To:
--------------------------------------                         CC:PSI:B01
                                                               PLR-140246-15
                                                               Date:
                                                               June 03, 2016




LEGEND

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

Date 1                     =        ----------------

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

State                      =        --------



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

This responds to a letter signed December 7, 2015, submitted on behalf of X, by X’s
authorized representative, requesting relief under section 1362(f) of the Internal
Revenue Code for an inadvertent invalid S election.

FACTS

According to the information submitted and representations made within, X was
incorporated on Date 1 under the laws of State and made an S election effective Date 2.

At the time of X’s election, X had an ineligible S corporation shareholder, which
invalidated X’s S election.

X represents that it has transferred the X shares from the ineligible shareholder to
eligible shareholders. X represents that the ineffectiveness of its S election was
inadvertent and was not motivated by tax avoidance or retroactive tax planning. X also
PLR-140246-15                                2

represents that X and its shareholders agree to make any adjustments required as a
condition of obtaining relief under the inadvertent invalid election rule as provided under
§ 1362(f) that may be required by the Secretary. X and its shareholders represent that
they have filed all returns consistently with X being an S corporation and that the
individual owners of the ineligible shareholder have reported all items of X consistent
with being X being 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 the year. Section 1361(b)(1) defines a “small business corporation” as a
domestic corporation that is not an ineligible corporation and that 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 1 class of stock.

Section 1362(f) provides, in part, that if (1) an election under § 1362(a) by any
corporation was not effective for the taxable year for which made by reason of a failure
to meet the requirements of § 1361(b), (2) the Secretary determines that the
circumstances resulting in the ineffectiveness were inadvertent, (3) no later than a
reasonable period of time after the discovery of the circumstances resulting in the
ineffectiveness, steps were taken so that the corporation for which the election was
made is a small business corporation, and (4) the corporation for which the election was
made, and each person who was a shareholder in such corporation at any time during
the period specified by § 1362(f), agrees to makes 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 ineffectiveness, the corporation is treated as an S corporation during the period
specified by the Secretary.

CONCLUSION

Based solely on the facts submitted and the representations made, we conclude that
X’s S corporation election was invalid. We further conclude that the invalidity was
inadvertent within the meaning of § 1362(f). Therefore, X will be treated as an S
corporation effective Date 2 and thereafter, provided X’s S corporation election is
otherwise valid and not otherwise terminated under § 1362(d).

This ruling is contingent on X filing a corrected Form 2553, Election by a Small Business
Corporation, with the appropriate service center, within 120 days from the date of this
letter, effective Date 2. A copy of this letter should be attached to the election.
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Except as specifically ruled upon 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. Specifically, we express or imply no opinion regarding X’s eligibility to be an S
corporation.

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.

Pursuant to the power of attorney on file with this office, we are sending a copy of this
letter to your authorized representative.

                                      Sincerely,


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



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


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