Foreign entity could retroactively elect disregarded status

Plain-English summary

A wholly owned foreign entity and its owner had not known that a Form 8832 election was required to obtain disregarded-entity treatment. The entity asked to make the classification election late with a redacted retroactive effective date. The IRS concluded that the late-election relief requirements were met and allowed 120 days to file Form 8832. Any necessary tax and information returns, including amended returns, also had to be filed consistently within that period. The IRS expressly did not determine whether the entity otherwise qualified for the requested classification.

Ruling snapshot

• Question: Could the foreign entity make a late election to be disregarded as separate from its owner?
• 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, and 301.9100-3.

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201817009 Third Party Communication: None
Release Date: 4/27/2018 Date of Communication: Not Applicable

                                                            Person To Contact:
                                                            -------------------------, ID No. ------------------

Index Number: 7701.00-00, 9100.00-00, -----------------------------------------------------
9100.31-00 Telephone Number:
----------------------
------------------------------------------ Refer Reply To:
------------------------- CC:PSI:B03
---------------------------------------------- PLR-126061-17
Date:

                                                            January 16, 2018

Legend

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

Y = ----------------------------------

Country = ------------------

Year = -------

Date = ------------------

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

  This letter responds to a letter dated July 27, 2017, submitted on behalf of X,

requesting an extension of time under § 301.9100-3 of the Procedure and
Administration Regulations for X to file an entity classification election.

  The information submitted states that X was formed under the laws of Country in

Year. X is wholly owned by Y. Until recently, X and Y had been unaware of the need to
make an entity classification election to treat X as disregarded as an entity separate
from Y. X now seeks relief to make a late entity classification election to be treated as
disregarded as an entity separate from its owner for federal tax purposes effective on
Date.

  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
PLR-126061-17 2

elect its classification for federal tax purposes. Elections are necessary only when an
eligible entity does not want to be classified under the default classification or when an
eligible entity chooses to change its classification.

   Section 301.7701-3(b) provides default classification for an eligible entity that

does not make an election. Section 301.7701-3(b)(2)(i) provides that, unless the entity
elects otherwise, a foreign eligible entity is (A) a partnership if it has two 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 under § 301.7701-3(b), or to change its classification,
by filing Form 8832 with the appropriate service center. Under § 301.7701-3(c)(1)(iii),
this election will be effective on the date specified by the entity on Form 8832 or on the
date filed if no such date is specified. The date specified on Form 8832 cannot be more
than 75 days prior to the date on which the election is filed and no more than 12 months
after the date the election is filed.

   Section 301.9100-1(c) provides that the Commissioner may grant a reasonable

extension of time to make a regulatory election, or a statutory election (but no more than
6 months except in the case of a taxpayer who is abroad), under all subtitles of the
Internal Revenue 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 the
election. Section 301.9100-2 provides the rules governing automatic extension of time
for making certain elections. Section 301.9100-3 provides 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. Under § 301.9100-3, a
request for relief will be granted when a taxpayer provides evidence to establish to the
satisfaction of the Commissioner that (1) the taxpayer acted reasonably and in good
faith, and (2) the granting of relief will not prejudice the interests of the government.

    Based solely on the information 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 120 days from the date of this letter to
file a Form 8832 with the appropriate service center to elect to be treated as
disregarded as an entity separate from its owner effective Date. A copy of this letter
should be attached to the Form 8832. A copy is enclosed for that purpose.

   This ruling is contingent on X filing, within 120 days from the date of this letter, to

the extent necessary or appropriate, all required federal income tax returns and
PLR-126061-17 3

information returns (including amended returns) consistent with the requested relief
granted in this letter.

   Except as specifically set forth above, we express or imply no opinion concerning

the federal tax consequences of the facts described above under any other provision of
the Code and the regulations thereunder. 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.

   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.

  This ruling is directed only to the taxpayer requesting it. Section 6110(k)(3) of

the Code provides that it may not be used or cited as precedent.

  In accordance with the power of attorney on file with this office, we are sending

copies of this letter to X’s authorized representatives.

                                  Sincerely,

                                  Associate Chief Counsel
                                  (Passthroughs & Special Industries


                              By: __________________________
                                 James A. Quinn
                                 Senior Counsel, Branch 3
                                 Office of Associate Chief Counsel
                                 (Passthroughs & Special Industries)

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

cc: