A foreign entity that missed the deadline to be taxed as a partnership gets 120 days to file a late Form 8832

Plain-English summary

A business entity formed under the laws of a foreign country wanted to be treated as a partnership for U.S. tax purposes. By default, a foreign entity whose members all have limited liability is treated as a corporation unless it elects otherwise by filing Form 8832, the entity classification election. After a U.S. corporation acquired an interest in the entity, the entity had more than one owner and intended partnership treatment starting on that date, but it did not file Form 8832 on time. It asked the IRS for an extension under Treasury Regulation section 301.9100-3, representing that it acted reasonably and in good faith and that relief would not harm the government. The IRS granted 120 days from the date of the letter to file the late election effective on the intended date, contingent on the entity and its owners filing all consistent returns for open years within the same 120 days (which may include international information returns such as Forms 5471, 8865, and 8858). The IRS added the usual section 965 caveat and did not decide whether the entity otherwise qualifies to make the election.

Ruling snapshot

• Question: Should a foreign entity get more time to file a late election to be classified as a partnership?
• Outcome: Approved (120-day extension to file Form 8832 under Treas. Reg. § 301.9100-3, with a § 965 caveat)
• Key authorities: Treas. Reg. § 301.7701-3(b)(2), (c); Treas. Reg. §§ 301.9100-1 through 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: 202145001 Third Party Communication: None
Release Date: 11/12/2021 Date of Communication: Not Applicable
Index Number: 9100.31-00, 7701.00-00
Person To Contact:
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------------------------------- Telephone Number:
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------------------------------------------------------ Refer Reply To:
-------------------------------- CC:PSI:B03
----------------------------- PLR-103304-21
Date:
August 13, 2021

                                                 Legend

X = ------------------------------------------------------------------------------------------------
----------------------
Y = ------------------------------------------------------------------------------------------------
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Date 1 = --------------------------
Date 2 = -----------------------
Country = ------------

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

   This letter responds to a letter dated January 28, 2021 submitted on behalf of X

by X's authorized representative, requesting an extension of time under § 301.9100-3 of
the Procedure and Administration Regulations to file an election under § 301.7701-3 to
be treated as a partnership for U.S. federal income tax purposes.

                                                 FACTS

  According to the information submitted, X was formed on Date 1 under the laws

of Country. On Date 2, Y, a U.S. corporation, acquired an interest in X. X states that
under § 301.7701-3(b)(2) it is a foreign eligible entity and its default classification is an
association taxable as a corporation for U.S. federal tax purposes. X represents it
PLR-103304-21 2

intended to be classified as a partnership for federal tax purposes effective Date 2.
However, X did not timely file Form 8832, Entity Classification Election, to elect to be
classified as a partnership effective Date 2.

   X represents that it acted reasonably and in good faith. Further, X represents

that the interests of the Government will not be prejudiced for all taxable years affected
by the election by granting the relief sought.

                               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.

    Section 301.7701-3(b)(2) provides guidance on the classification of a foreign

eligible entity for federal tax purposes. Generally, a foreign eligible entity is treated as
an association taxable as a corporation if all members have limited liability, unless the
entity makes an election to be treated otherwise. If the foreign eligible entity has only
one owner, it may elect to be treated as a disregarded entity pursuant to the rules in
§ 301.7701-3(c).

    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 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 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, or a revenue ruling,
revenue procedure, notice, or announcement published in the Internal Revenue Bulletin.

   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 an
election. 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.
PLR-103304-21 3

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 the taxpayer provides 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 information 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 120 days from the date of this letter to file a
Form 8832 with the appropriate service center to elect to be classified as a partnership
for federal tax purposes, effective Date 2. A copy of this letter should be attached to the
Form 8832.

    This ruling is contingent on X and its owners filing within 120 days of 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
may include, but are not limited to, the following forms: (i) Forms 5471, Information
Return of U.S. Person with Respect to Certain Foreign Corporations, (ii) Forms 8865,
Return of U.S. Persons with Respect to Certain Foreign Partnerships, and (iii) Forms
8858, Information Return of U.S. Person with Respect to Foreign Disregarded Entities,
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, this election is disregarded for purposes of determining the amounts

of all section 965 elements of all United States owners of X if the election otherwise
would change the amount of any section 965 element of any such United States owner.
See § 1.965-4(c)(2).

   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.
PLR-103304-21 4

  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 a

copy of this letter to X's authorized representative.

                                  Sincerely,

                                  Associate Chief Counsel
                                  (Passthroughs & Special Industries)

                                 /s/ Adrienne M. Mikolashek
                              By:_________________________
                                 Adrienne M. Mikolashek
                                 Branch Chief, Branch 3
                                 Office of Associate Chief Counsel
                                 (Passthroughs & Special Industries)

Enclosure (2)
Copy of Letter
Copy for 6110 purposes

cc: