Late ESBT elections received inadvertent S termination relief

Plain-English summary

Two trusts acquired shares of an S corporation but their trustees did not timely elect electing small business trust status. The first omission terminated the corporation’s S election, and the second would also have caused a termination. The corporation represented that the trusts otherwise qualified, all parties had filed consistently with S status, and the failures were inadvertent rather than tax-motivated. The IRS allowed continuous S corporation treatment, conditioned on both trusts filing retroactive ESBT elections within 120 days.

Ruling snapshot

• Question: May the corporation receive inadvertent termination relief for two trusts’ late ESBT elections?
• Outcome: approved, conditioned on both ESBT elections being filed within 120 days
• Key authorities: IRC §§ 1361(e) and 1362(f); Treas. Reg. § 1.1361-1(m)

Full text (IRS public release)

Internal Revenue Service                                       Department of the Treasury
                                                               Washington, DC 20224

Number: 201938003                                              Third Party Communication: None
Release Date: 9/20/2019                                        Date of Communication: Not Applicable
Index Number: 1361.00-00, 1361.03-00,
              1361.03-03, 1362.00-00,                          Person To Contact:
              1362.02-00, 1362.02-02,                          ----------------, ID No. --------------
              1362.04-00                                       Telephone Number:
                                                               --------------------
------------------------------------------------               Refer Reply To:
------------------------------------------                     CC:PSI:01
---------------------------                                    PLR-107783-19
---------------------------------                              Date:
                                                               June 05, 2019




Legend

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

Trust 1           =        ----------------------------------------------------------------

Trust 2           =        ------------------------------------------------------

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

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

Date 3            =        ---------------------------

Date 4            =        ---------------------

State             =        ------------------



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

This responds to a letter dated April 8, 2019, requesting relief under section 1362(f) of
the Internal Revenue Code (the Code).

PLR-107783-19                                  2

                                            Facts

According to the information submitted and representations within, X was incorporated
on Date 1, under the laws of State. Effective Date 2, X elected to be taxed as an S
corporation.

On Date 3, Trust 1 acquired shares in X. However, a timely election to treat Trust 1 as
an Electing Small Business Trust (ESBT) was not made, causing X's S corporation
election to terminate effective Date 3.

X represents that Trust 1, has at all times, met the requirements of an ESBT within the
meaning of section 1361(e), except that the trustee of Trust 1, did not make a timely
ESBT election under section 1361(e)(3).

On Date 4, Trust 2 acquired shares of X from an estate. However, a timely election to
treat Trust 2 as an Electing Small Business Trust (ESBT) was not made, that would
have caused X's S corporation election to terminate effective Date 4.

X represents that Trust 2, has at all times, met the requirements of an ESBT within the
meaning of section 1361(e), except that the trustee of Trust 2, did not make a timely
ESBT election under section 1361(e)(3). X further represents that Trust 1, has filed its
income tax return consistent with being ESBT since Trust 2 acquired its shares in X.

X represents that upon discovering that its S election had terminated, X took corrective
action by filing this request for relief. X represents that the circumstances resulting in the
inadvertent termination and the failure to make timely ESBT elections was inadvertent
and not motivated by tax avoidance or retroactive tax planning. X further represents that
X has filed its income tax returns consistent with having a valid S election in effect for all
taxable years since X elected to be an S corporation. X represents that other than the
failure to make a valid ESBT elections on Date 3 and Date 4, X has qualified as a small
business corporation at all times since its election on Date 2. Lastly, X and its
shareholders agree to make any adjustments required as a condition of obtaining relief
under § 1362(f) that may be required by the Secretary.

                                     Law and Analysis

Section 1361(a) provides that an S corporation is a small business corporation for which
an election under § 1362(a) is in effect.

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.

PLR-107783-19                                  3

Section 1361(b)(1) provides that the terms “small business corporation” means a
domestic corporation which is not an ineligible corporation and which 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 1361(c)(2)(A)(i) provides that for purposes of section 1361(b)(1) a trust all of
which is treated (under subpart E of part I of subchapter J of this chapter) as owned by
an individual who is a citizen or resident of the United States may be an S corporation
shareholder.

Section 1361(c)(2)(A)(iii) provides that a trust with respect to stock transferred to it,
pursuant to the terms of a will, is a permissible shareholder for the two year period
beginning on the day on which the stock is transferred to it.

Section 1361(c)(2)(A)(v) provides that for purposes of § 1361(b)(1)(B), an ESBT is a
permissible shareholder.

Section 1361(e) provides that an ESBT means any trust if (i) such trust does not have
as a beneficiary any person other than (I) an individual, (II) an estate, (III) an
organization described in § 170(c)(1) which holds a contingent interest in such trust and
is not a potential current beneficiary, (ii) no interest in such trust was acquired by
purchase, and (iii) an election under § 1361(e) applies to such trust.

Section 1361(e)(3) provides that an election under § 1361(e) shall be made by the
trustee. Any such election shall apply to the taxable year of the trust for which made and
all subsequent taxable years of such trust unless revoked with the consent of the
Secretary.

Section 1.1361-1(m)(2)(i) provides that the trustee of an ESBT must make the ESBT
election by signing and filing, with the service center where the S corporation files its
income tax return, a statement that meets the requirements of § 1.1361-1(m)(2)(ii).

Section 1.1361-1(m)(2)(iii) provides that the trustee of an ESBT must file the ESBT
election within the time requirements prescribed in § 1.1361-1(j)(6)(iii) for filing a QSST
election (generally within the 16-day-and-2-month period beginning on the day that the
stock is transferred to the trust).

Section 1362(a) provides that a small business corporation may elect to be an S
corporation.

Section 1362(d)(2)(A) provides that an election under § 1362(a) shall be terminated
whenever (at any time on or after the 1st day of the 1st taxable year for which the

PLR-107783-19                                4

corporation is an S corporation) such corporation ceases to be a small business
corporation.

Section 1362(f) provides, in relevant part, that if (1) an election under § 1362(a) by any
corporation terminated under § 1362(d)(2); (2) the Secretary determines that the
circumstances resulting in such termination were inadvertent; (3) no later than a
reasonable period of time after discovery of the circumstances resulting in such
termination, steps were taken so that the corporation for which the termination occurred
is a small business corporation; and (4) the corporation for which the termination
occurred, and each person who was a shareholder in such corporation at any time
during the period specified pursuant to § 1362(f), agrees to make the adjustments
(consistent with the treatment of such corporation as an S corporation) as may be
required by the Secretary with respect to such period, then, notwithstanding the
circumstances resulting in such termination, such corporation shall be 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
the failure of Trust 1 and Trust 2 to make ESBT elections effective Date 3 and Date 4,
respectively, caused or would have caused an inadvertent termination of X’s S
corporation election within the meaning of § 1362(f). Pursuant to the provisions of §
1362(f), X will be treated as continuing to be an S corporation beginning on and after
Date 3, unless X’s S corporation election is otherwise terminated under § 1362(d).

This letter ruling is subject to the condition that within 120 days from the date of this
letter, an election to treat Trust 1 as an ESBT effective Date 3 and an election to treat
Trust 2 as an ESBT effective Date 4 must be made with the appropriate service center.
A copy of this letter should be attached to the ESBT elections. If this condition is not
met, then this ruling is null and void. Furthermore, if this condition is not met, X must
send notification that its S election has terminated to the service center with which X’s S
election was filed.

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 or whether Trust was or is otherwise eligible to be an ESBT.

This ruling is directed only to the taxpayer who requested it. According to § 6110(k)(3),
this ruling may not be used or cited as precedent.

PLR-107783-19                                5

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


                                      Sincerely,


                                      David Haglund
                                      David Haglund
                                      Branch Chief, Branch 1
                                      Office of the Associate Chief Counsel
                                      (Passthroughs and Special Industries)

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