9100 relief to file a late Form 8832 classifying a foreign entity as a partnership

Plain-English summary

A foreign business entity, eligible under the check-the-box rules to choose how it is classified for U.S. federal tax purposes, wanted to be treated as a partnership as of a chosen effective date. It never timely filed the required Form 8832 (Entity Classification Election). The entity asked the IRS for "9100 relief," a discretionary extension under Treas. Reg. § 301.9100-3, and the IRS granted it. That relief is available when the taxpayer shows it acted reasonably and in good faith and that granting relief will not prejudice the government. The IRS gave the entity 120 days from the date of the letter to file Form 8832 with its intended effective date. The ruling adds two standard limits: granting the extension is not a determination that the entity is otherwise eligible to make the election, and if the election would otherwise change any § 965 (one-time transition tax) amount of the entity's U.S. shareholders, it is disregarded for those § 965 purposes under Treas. Reg. § 1.965-4(c)(2). This matters because an entity's classification drives how it and its owners are taxed, and 9100 relief can rescue an inadvertently missed election.

Ruling snapshot

• Question: Should the foreign entity get an extension of time under § 301.9100-3 to file a late Form 8832 electing to be classified as a partnership?
• Outcome: Approved (9100-3 relief granted; 120 days to file Form 8832, with the § 1.965-4(c)(2) anti-abuse caveat)
• Key authorities: Treas. Reg. §§ 301.7701-3, 301.9100-1, 301.9100-3, 1.965-4(c)(2)

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 202152008
Third Party Communication: None
Release Date: 12/30/2021
Date of Communication: Not Applicable
Index Numbers: 7701.00-00, 9100.00-00,
9100.31-00
Person To Contact:
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Refer Reply To:
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CC:PSI:B03
--------------------------------------------------------- PLR-107843-21 Date:
September 28, 2021

LEGEND

X = ------------------------------------------------------------------------------------------------
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Country = ----------

Date 1 = ------------------------------------------------------------------------------------------------
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Date 2 = ---------------------

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

This letter responds to a letter dated March 23, 2021, 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 to file an election under § 301.7701-3 to be classified as a partnership for federal tax purposes.

FACTS

The information submitted discloses that X was organized under the laws of Country on Date 1. X represents that it is a foreign entity eligible to elect to be classified as a partnership for federal tax purposes effective Date 2. However, X failed to timely
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file Form 8832, Entity Classification Election, to be classified as a partnership for federal tax purposes effective Date 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, except as provided in § 301.7701-3(c)(1)(iv) and (v), 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, in part, 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.

Under § 301.9100-1(c), the Commissioner may grant a reasonable extension of time to make a regulatory election, or a statutory election (but no more than six 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.

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 automatic extensions of time for making certain
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elections. Section 301.9100-3 provides extensions of time for regulatory elections that do not meet the requirements of § 301.9100-2.

Section 301.9100-3(a) provides that requests for relief under § 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 and representations submitted, we conclude that X has satisfied the requirements of §§ 301.9100-1 and 301.9100-3. Consequently, 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 classified as a partnership effective Date 2. A copy of this letter should be attached to the election.

If applicable, X’s election to be classified as a partnership 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 for the specific ruling 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. 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.

This ruling is directed only to the taxpayer requesting it. According to § 6110(k)(3) of the Code, this ruling may not be used or cited as precedent.

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.
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Under a power of attorney on file with this office, we are sending a copy of this letter to X's authorized representatives.

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)

Enclosure:
Copy of this letter for § 6110 purposes

cc: