Foreign entity gets 120 days to file a late disregarded-entity election

Plain-English summary

A foreign eligible entity intended to be treated as disregarded from its owner for U.S. federal tax purposes but inadvertently failed to file Form 8832 with the intended effective date. The IRS concluded that the entity satisfied the standards for discretionary relief. It granted 120 days to file the late entity-classification election. The relief was contingent on the entity and its owner filing all required original or amended returns for open years consistently with disregarded status, including applicable Form 8858 filings. The election is ignored when calculating Section 965 elements if recognizing it would change those amounts for a U.S. shareholder. The IRS did not decide whether the entity otherwise qualified for the election or whether penalties should be excused.

Ruling snapshot

• Question: May the foreign eligible entity file a late Form 8832 election to be disregarded as separate from its owner?
• Outcome: Approved: the entity received 120 days to file the election and consistent returns.
• Key authorities: Treas. Reg. §§ 301.7701-3, 301.9100-1, and 301.9100-3; Treas. Reg. § 1.965-4(c)(2)

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 202122008 Third Party Communication: None
Release Date: 6/4/2021 Date of Communication: Not Applicable
Index Numbers: 7701.00-00, 9100.00-00,
9100.31-00 Person To Contact:
----------------------, ID No. ------------------
----------------------------------------------------- Telephone Number:
----------------------------------- -------------------
------------------------------------------ Refer Reply To:
---------------------------- CC:PSI:B3
PLR-121535-20
Date:
March 10, 2021

Legend:

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

Country = --------

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

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

  This letter responds to a letter dated September 28, 2020, and subsequent

correspondence, submitted on behalf of X by its authorized representative, requesting
an extension of time under § 301.9100-3 of the Procedure and Administration
Regulations for X to file an election under § 301.7701-3 to be classified as a
disregarded entity for federal tax purposes.

                                                     Facts

    Based on the material submitted, X was formed under the laws of Country on

Date. X represents that it is a foreign entity eligible to elect to be disregarded as an
entity separate from its owner for federal tax purposes effective Date. However, due to
inadvertence, X failed to file a Form 8832, Entity Classification Election, electing to be
disregarded as an entity separate from its owner for federal tax purposes effective Date.

PLR-121535-20 2

                                 Law and Analysis

    Section 301.7701-3(a) provides, in part, 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 elect its classification for federal tax purposes as provided in
§ 301.7701-3. An eligible entity with at least two members can elect to be classified as
either an association (and thus a corporation under § 301.7701-2(b)(2)) or a
partnership, and an eligible entity with a single owner can elect to be classified as an
association or to be disregarded as an entity separate from its owner.

     Section 301.7701-3(b)(2)(i) provides that, except as provided in § 301.7701-

3(b)(3), unless the entity elects otherwise, a foreign eligible entity is – (A) a partnership
if it has two or more 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(b)(2)(ii) provides, in part, that for purposes of § 301.7701-3(b)(2)(i),
a member of a foreign eligible entity has limited liability if the member has no personal
liability for the debts of or claims against the entity by reason of being a member.

    Section 301.7701-3(c)(1)(i) provides, in part, 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 service center designated on Form 8832.

    Section 301.7701-3(c)(1)(iii) provides that an election made under § 301.7701-

3(c)(1)(i) will be effective on the date specified by the entity on Form 8832 or on the
date filed if no such date is specified on the election form. The effective date specified
on Form 8832 cannot be more than 75 days prior to the date on which the election is
filed and cannot be more than 12 months after the date on which the election is filed.

    Section 301.9100-1(c) provides that the Commissioner in exercising the

Commissioner’s discretion may grant a reasonable extension of time under the rules set
forth in §§ 301.9100-2 and 301.9100-3 to make a regulatory election, or a statutory
election (but not more than 6 months except in the case of a taxpayer who is abroad),
under all subtitles of the Internal Revenue Code (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.

   Section 301.9100-2 provides the standards the Commissioner will use to

determine whether to grant an automatic extension of time for making certain elections.
Section 301.9100-3 provides the guidelines for granting extensions of time for making
elections that do not meet the requirements of § 301.9100-2.

PLR-121535-20 3

    Section 301.9100-3(a) provides that requests for relief subject to § 301.9100-3

will be granted when the taxpayer provides the evidence (including affidavits described
in § 301.9100-3(e)) to establish to the satisfaction of the Commissioner that the
taxpayer acted reasonably and in good faith, and the grant of relief will not prejudice the
interests of the Government.

                                     Conclusion

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

that X has satisfied the requirements of §§ 301.9100-1 and 301.9100-3. As a result, X
is granted an extension of time of one hundred twenty (120) days from the date of this
letter to file Form 8832 with the appropriate service center to elect to be disregarded as
an entity separate from its owner for federal tax purposes effective Date. A copy of this
letter should be attached to the Form 8832.

    This ruling is contingent on X and its owner filing, within 120 days from the date

of this letter, all required federal income tax returns and information returns (including
amended returns) for all open years consistent with the requested relief. These returns
must include, but are not limited to, Form 8858, Information Return of U.S. Persons
With Respect to Foreign Disregarded Entities and Foreign Branches, such that these
forms reflect the consequences of the relief granted in this letter. A copy of this letter
should be attached to any such returns.

   If applicable, X’s election to be classified as a disregarded entity effective Date is

disregarded for purposes of determining the amounts of all § 965 elements of all United
States shareholders of X if the election otherwise would change the amount of any
§ 965 element of any such United States shareholder. See § 1.965-4(c)(2) of the
Income Tax Regulations.

   Except as specifically set forth 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 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.

   In addition, we express no opinion concerning the assessment of any interest,

additions to tax, additional amounts, or penalties for failure to file a timely income tax or
information return with respect to any taxable year that may be affected by this ruling.
For example, we express no opinion as to whether a taxpayer is entitled to relief from
any penalty on the basis that the taxpayer had reasonable cause for failure to file timely
any income tax or information returns.

  We are directing the ruling only to the taxpayer who requested it. Section

6110(k)(3) of the Code provides that it may not be used or cited as precedent.

PLR-121535-20 4

    Pursuant to a power of attorney on file with this office, we are sending a copy of

this letter to X’s authorized representatives.

   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,
                                       Associate Chief Counsel
                                      (Passthroughs & Special Industries)


                                  By: _______________________
                                      Mary Beth Carchia
                                      Senior Technician Reviewer, Branch 3
                                      Office of the Associate Chief Counsel
                                      (Passthroughs & Special Industries)

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

cc: