An LLC gets 120 extra days to make a late "check-the-box" election to be disregarded

Plain-English summary

A single-member limited liability company had filed a valid "check-the-box" election (Form 8832) to be taxed as a corporation, effective on its formation date. Its sole owner later decided the company should instead be disregarded as a separate entity, meaning its income is reported directly by the owner, but it missed the deadline to make that new election. The company asked the IRS for more time under the § 301.9100-3 relief rules. Ordinarily an entity cannot change its classification again within 60 months of a prior election, but that limit does not apply when the earlier election was effective on the date of formation. The IRS found the taxpayer acted reasonably and in good faith and that relief would not prejudice the government, so it granted a 120-day extension to file the late election. Relief is conditioned on the company and its owner filing consistent returns for all open years.

Ruling snapshot

• Question: Should the LLC get an extension of time to make a late election to be disregarded as a separate entity, despite the 60-month limit on changing classification?
• Outcome: Approved (120-day extension granted under § 301.9100-3; 60-month limit inapplicable because the prior election was on formation)
• Key authorities: Treas. Reg. §§ 301.7701-3(c), 301.9100-1 through 301.9100-3

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 202218023
Third Party Communication: None
Release Date: 5/6/2022
Date of Communication: Not Applicable
Index Number: 9100.00-00
Person To Contact:

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Telephone Number:
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Refer Reply To:
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CC:PSI:B01
PLR-117699-21
Date:
January 14, 2022

LEGEND:

X = ------------------------------------------------------------------------------------------
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Y = ------------------------------------------------------------------------------------------
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State = -------------

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

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

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

This letter responds to a letter dated August 20, 2021, 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 to under § 301.7701-3 to be treated as an entity disregarded as separate from its owner for federal tax purposes.

Facts

According to the information submitted and representations within, X was formed as a limited liability company under the laws of State on Date 1. Following advice provided, X timely filed a valid election on Form 8832, Entity Classification Election, to be treated as an association taxable as a corporation effective Date 1. Since X’s formation, Y has wholly-owned X. X now seeks relief to make a late entity classification election to be treated as an entity disregarded as separate from Y, effective Date 2.
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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)(1) provides that except as provided in § 301.7701-3(b)(3), unless the entity elects otherwise, a domestic eligible entity is: (i) a partnership if it has two or more members, or (ii) disregarded as an entity separate from its owner if it has a single owner.

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, 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.

Section 301.7701-3(c)(1)(iv) provides, in part, that if an eligible entity makes an election under section 301.7701-3(c)(1)(i) to change its classification, the entity cannot change its classification by election again during the sixty months succeeding the effective date of the election. However, the Commissioner may permit the entity to change its classification by election within the sixty months if more than fifty percent of the ownership interests in the entity as of the effective date of the subsequent election are owned by persons that did not own any interests in the entity on the filing date or on the effective date of the entity's prior election. An election by a newly formed eligible entity that is effective on the date of formation is not considered a change for purposes of this paragraph (c)(1)(iv).

Section 301.9100-1(c) provides that the Commissioner 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.

Section 301.9100-2 provides the rules governing automatic extensions of time for making certain elections. Section 301.9100-3 provides the standards the Commissioner
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will use to determine whether to grant an extension 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 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 (1) the taxpayer acted reasonably and in good faith, and (2) the grant of relief will not prejudice the interests of the Government.

Conclusion

Based solely on the facts submitted and representations made, we conclude that the requirements of § 301.9100-3 have been satisfied. Because the initial election was made on X’s formation date, the sixty-month limitation does not apply, and X may make a subsequent election on Date 2.

Accordingly, X is granted an extension of time of 120 days from the date of this letter to file Form 8832 with the appropriate service center to elect to be classified as an entity disregarded as separate from its owner 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 original or amended information and tax returns for all open years consistent with the requested relief. A copy of this letter should be attached to any such returns.

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 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 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 requesting it. Section 6110(k)(3) provides that it may not be used or cited as precedent.
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In accordance with the Power of Attorney on file with this office, a copy of this letter is being sent to X’s authorized representative.

Sincerely,

Holly Porter
Associate Chief Counsel
(Passthroughs & Special Industries)

________
Laura C. Fields
Chief, Branch 1
(Passthroughs & Special Industries)

Enclosure:
Copy for 6110 purposes

cc: