Corporation received 120 days to file late S election

Plain-English summary

A corporation intended to be treated as an S corporation from a specified date but did not timely file the election. It established reasonable cause for the late filing under section 1362(b)(5). The IRS ruled that the corporation would be recognized as an S corporation from the requested effective date if it otherwise qualified and filed a properly completed Form 2553 within 120 days. The ruling did not decide whether the corporation otherwise met all S corporation requirements.

Ruling snapshot

• Question: May the corporation make a late S election effective from its originally intended date?
• Outcome: approved, if Form 2553 is filed within 120 days and the corporation otherwise qualifies
• Key authorities: IRC §§ 1362(a), 1362(b)(2), and 1362(b)(5)

Full text (IRS public release)

Internal Revenue Service                                         Department of the Treasury
                                                                 Washington, DC 20224

Number: 202004001                                                Third Party Communication: None
Release Date: 1/24/2020                                          Date of Communication: Not Applicable
Index Number: 1361.01-00, 1362.01-03
                                                                 Person To Contact:
-----------------------------------------                        --------------, ID No. -----------------
-------------------------------                                  Telephone Number:
-----------------------                                          ---------------------
------------------------------------                             Refer Reply To:
                                                                 CC:PSI:B01
                                                                 PLR-102996-19
                                                                 Date:
                                                                 August 21, 2019


LEGEND

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

D1       =        -----------------------

D2       =        ----------------------

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



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

This responds to a letter dated October 30, 2018, and supplemental correspondence,
submitted on behalf of X, requesting relief under § 1362(b)(5) of the Internal Revenue
Code.

FACTS

According to the information submitted, X was incorporated on D1 under the laws of
State. X intended to be treated as an S corporation for Federal tax purposes effective
D2, but the proper election was not timely filed.

LAW AND ANALYSIS

Section 1362(a) provides that a small business corporation may elect to be an S
corporation. Section 1362(b) provides the rule on when an S election will be effective.

Section 1362(b)(2) provides that if an S election is made within the first two and one-half
months of a corporation's taxable year, then the corporation will be treated as an S
PLR-102996-19                                2

corporation for the year in which the election is made. If the election is made after the
first two and one-half months of a corporation's taxable year, then the corporation will
not be treated as an S corporation until the taxable year after the year in which the S
election is made.

Section 1362(b)(5) provides that if no election is made pursuant to § 1362(a), or, if
made, the election is made after the date prescribed for making such an election, and
the Secretary determines there was reasonable cause for the failure to timely make the
election, then the Secretary may treat such election as timely made for such taxable
year and effective as of the first day of that year.

X did not file a timely election to be treated as an S corporation under § 1362(a)
effective D2. X has, however, established reasonable cause for not making a timely
election and is entitled to relief under § 1362(b)(5).

CONCLUSION

Based solely on the facts submitted and representations made, and provided that X
otherwise qualifies as a subchapter S corporation, we conclude that X will be
recognized as an S corporation effective D2 if, within 120 days from the date of this
letter, X submits a properly completed Form 2553, with a copy of this letter attached, to
the appropriate service center.

Except as expressly provided herein, no opinion is expressed or implied concerning the
tax consequences of any aspect of any transaction or item discussed or referenced in
this letter. Specifically, no opinion is expressed or implied concerning whether X
otherwise qualifies as an S corporation for federal tax purposes.

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.
PLR-102996-19                               3

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.



                                     Sincerely,

                                     Laura C. Fields
                                     Laura C. Fields
                                     General Attorney, 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