Inadvertent invalid S election forgiven where a shareholder trust missed its ESBT election

Plain-English summary

A corporation elected to be taxed as an S corporation, but one of its shareholders was a trust that had to file its own election to be an "electing small business trust" (ESBT) to be an eligible S corporation shareholder. That ESBT election was never timely filed, so the trust was an ineligible shareholder and the company's S election was invalid from the start. The company asked the IRS for relief under § 1362(f), which lets the IRS treat an S election as valid despite such a defect when the failure was inadvertent, not tax-motivated, and the company and its shareholders agree to make any needed corrective adjustments. The IRS granted relief: the company will be treated as an S corporation from its intended effective date forward, on two conditions to be met within 120 days: the trust must file an ESBT election effective the same date, and the company and its shareholders must file any required original or amended returns consistent with ESBT treatment for all open years. If the conditions are not met, the ruling is void. This matters because an invalid S election can trigger corporate-level tax and back-tax exposure, and § 1362(f) relief restores the intended pass-through treatment.

Ruling snapshot

• Question: Was the company's S corporation election inadvertently invalid under § 1362(f) because a shareholder trust failed to timely file its ESBT election, and should relief be granted?
• Outcome: Approved (§ 1362(f) relief granted; treated as an S corporation from the effective date, contingent on filing the ESBT election and consistent returns within 120 days)
• Key authorities: IRC §§ 1362(f), 1361(b), 1361(c)(2), 1361(e); Treas. Reg. § 1.1361-1(m)

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 202152001
Third Party Communication: None
Release Date: 12/30/2021
Date of Communication: Not Applicable
Index Number: 1362.00-00, 1362.04-00
Person To Contact:
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Telephone Number:
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Refer Reply To:
CC:PSI:01
PLR-100132-21
Date:
June 16, 2021

LEGEND

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

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

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

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

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

Years = --------------

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

This responds to a letter dated December 18, 2020 and supplemental information, submitted on behalf of X by X's authorized representatives, requesting relief under section 1362(f) of the Internal Revenue Code (the Code).

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. However, an Electing Small Business Trust (ESBT) election effective Date 2 was not timely filed for Trust 1, a shareholder of X. Accordingly, Trust 1 was an ineligible shareholder of X and X's S corporation election was ineffective.

X represents that Trust 1 has at all times since Date 2 met the requirements of an ESBT within the meaning of § 1361(e). X represents that its ineffective S corporation election
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was inadvertent and was not motivated by tax avoidance or retroactive tax planning. X represents that Trust 1 has filed its income tax returns consistent with being an ESBT for Years and that X has and its shareholders have filed consistently with X being a S corporation. X represents that X and its shareholders agree to make any adjustments required as a condition of obtaining relief for its ineffective election as provided under
§ 1362(f) of the Code that may be required by the Secretary.

LAW AND ANALYSIS

Section 1361(a)(1) of the Code 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 such year.

Section 1361(b)(1) defines a “small business corporation” as 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 § 1362(b)(1)(B), a trust all of which is treated 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)(v) provides that, for purposes of § 1362(b)(1)(B), an electing small business trust (ESBT) may be an S corporation 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)(1)(B) provides that the term “electing small business trust” shall not include (i) any qualified subchapter S trust (as defined in § 1361(d)(3)) if an election under § 1361(d)(2) applies to any corporation the stock of which is held by such trust, (ii) any trust exempt from tax under subtitle A, and (iii) any charitable remainder annuity trust or charitable remainder unitrust (as defined in § 664(d)).

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.
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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(f) provides, in relevant part, that if (1) an election under § 1362(a) by any corporation was not effective for the taxable year for which made (determined without regard to § 1362(b)(2)) by reason of a failure to meet the requirements of § 1361(b) or was terminated under § 1362(d)(2) or (3); (2) the Secretary determines that the circumstances resulting in such ineffectiveness or termination were inadvertent; (3) no later than a reasonable period of time after discovery of the circumstances resulting in such ineffectiveness or termination, steps were taken so that the corporation for which the election was made or termination occurred is a small business corporation; and (4) the corporation for which the election was made or 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 ineffectiveness or 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 X's S election was inadvertently ineffective within the meaning of § 1362(f) on Date 2 because Trust 1 was an ineligible shareholder. Pursuant to the provisions of § 1362(f), X will be treated as an S corporation from Date 2 and thereafter, provided X's S corporation election is otherwise effective and not terminated under § 1362(d).

This letter is subject to the following conditions that must occur within 120 days from the date of this letter (1) an election to treat Trust 1 as an ESBT effective Date 2 must be made with the appropriate service center and (2) X and its shareholders must file any necessary original and amended returns for all open years, including Years, consistent with the relief granted in this letter reflecting the treatment of Trust 1 as an ESBT. If the statute of limitations for any of Years closes prior to 120 days from the date of this letter, condition (2) must be satisfied for that year prior to the date the statute of limitations closes for that year. A copy of this letter should be attached to the ESBT elections and any amended returns. If these conditions are not met, then this letter ruling is null and void.
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Furthermore, if these conditions are 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.

The ruling contained in this letter is based upon information and representations submitted by the taxpayer and is accompanied by a penalty of perjury statement executed by the 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 who requested it. According to § 6110(k)(3), this ruling 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 your authorized representatives.

Sincerely,

Laura C. Fields
Laura C. Fields
Branch Chief, Branch 1
Office of the Associate Chief Counsel
(Passthroughs and Special Industries)

Enclosure

Copy for §6110 purposes

cc: