Corporation receives inadvertent invalid S election relief

Plain-English summary

A corporation's operating agreement created a second class of stock, making its S corporation election invalid. After discovering the problem, the corporation adopted a new operating agreement that removed the offending provisions. It represented that the defect was inadvertent, was not motivated by tax avoidance or retroactive planning, and that the corporation and its shareholders had consistently filed as an S corporation. The corporation and shareholders also agreed to make any adjustments the IRS required. The IRS granted relief under section 1362(f) and treated the corporation as an S corporation from its intended effective date, provided the election was not otherwise terminated.

Ruling snapshot

• Question: Was the S corporation election's invalidity from a second class of stock inadvertent and eligible for section 1362(f) relief?
• Outcome: Approved.
• Key authorities: IRC §§ 1361 and 1362; Treas. Reg. § 1.1361-1.

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 202001004 Third Party Communication: None
Release Date: 1/3/2020 Date of Communication: Not Applicable
Index Number: 1362.00-00
Person To Contact:
------------------------------------ ------------------------------,
------------------------------ ID No. ----------------
-------------------------------- Telephone Number:
------------------------------------------- ----------------------
Refer Reply To:
CC:PSI:B01
PLR-105022-19
Date:
August 26, 2019

LEGEND

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

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

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

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

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

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

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

    This responds to a letter dated December 31, 2018, and supplemental

correspondence, submitted on behalf of X, by X’s authorized representative, requesting
relief under § 1362(f) of the Internal Revenue Code (the Code).

Facts

  According to the information submitted and representations within, X was formed

on Date 1, under the laws of State. Effective Date 2, X elected to be taxed as an S
corporation.

  X represents that its original operating agreement, as amended on Date 3,

created a second class of stock causing its S election to be invalid. X represents that
on Date 4 it discovered its S election was invalid. X took corrective action by adopting a
PLR-105022-19 2

new operating agreement eliminating the provisions that caused X to have a second
class of stock.

   X represents that its invalid S election was inadvertent and was not motivated by

tax avoidance or retroactive tax planning and that X and its shareholders have filed
consistently with being an S corporation. X also 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) of the Code that may be
required by the Secretary.

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 which is not an ineligible corporation which does not (A) have
more than 100 shareholders, (B) have as a shareholder a person (other than an estate,
and a trust described in subsection (c)(2), or an organization described in subsection
(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(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 taxable year for which
the corporation is an S corporation) such corporation ceases to be a small business
corporation. Section 1362(d)(2)(B) further provides that the termination shall be
effective on and after the date of cessation.

   Treas. Reg. § 1.1361-1(I)(1) provides that a corporation is generally treated as

having only one class of stock if all outstanding shares of stock of the corporation confer
identical rights to distribution and liquidation proceeds.

   Section § 1.1361-1(I)(2)(i) provides, in part, that the determination of whether all

outstanding shares of stock confer identical rights to distribution and liquidation
proceeds is made based on the corporate charter, articles of incorporation, bylaws,
applicable state laws, and binding agreements relating to distribution and liquidation
proceeds (collectively, governing provisions). Although a corporation is not treated as
having more than one class of stock so long as the governing provisions provide for
identical distribution and liquidation rights, any distributions (including actual,
constructive, or deemed distributions) that differ in timing and amount are to be given
appropriate tax effect in accordance with the facts and circumstances.

  Section 1362(f) provides in part that if (1) an election under § 1362(a) by any

corporation was terminated under § 1362(d), (2) the Secretary determines that the
circumstances resulting in the termination were inadvertent, (3) no later than a
reasonable period of time after the discovery of the circumstances resulting in the
PLR-105022-19 3

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 of inadvertent termination of the S election, 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 termination, the corporation is treated as an S corporation
during the period specified by the Secretary.

Conclusion

   Based on the facts submitted and the representations made, we conclude that

the invalidity of X’s S corporation election 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 not otherwise terminated under § 1362(d).

     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.

   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)

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 X’s authorized representative.

                                      Sincerely,

                                      Laura C. Fields
                                      Laura C. Fields
                                      Senior Technician Reviewer, Branch 1
                                      Office of Associate Chief Counsel
                                      (Passthroughs & Special Industries)

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

cc: