IRS lets a single-member LLC file both a late corporate-classification election and a late S corporation election

Plain-English summary

A single-owner LLC wanted to be taxed as an S corporation, which requires two elections: first electing to be treated as a corporation (Form 8832), then electing S corporation status (Form 2553). The LLC filed neither on time. It asked the IRS for relief. Under Treas. Reg. § 301.9100-3, the IRS grants extensions to make a late classification election when the taxpayer acted reasonably and in good faith and the government is not harmed; under IRC § 1362(b)(5), it can treat a late S election as timely if there was reasonable cause. The IRS granted both: 120 days from the date of the letter to file Form 8832 electing corporate treatment, and 120 days to file Form 2553 for the S election, which will then be treated as timely. This double relief is a common fix for LLCs whose owners assumed S corporation status took effect automatically. The IRS expressed no opinion on whether the LLC actually qualifies as a small business corporation under § 1361(b).

Ruling snapshot

• Question: May a single-member LLC that missed both its entity classification election and its S election obtain relief to file them late?
• Outcome: Approved (120-day extensions granted for Form 8832 and Form 2553)
• Key authorities: Treas. Reg. §§ 301.9100-1 and 301.9100-3; IRC § 1362(b)(5); Treas. Reg. § 301.7701-3

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 202334003
Release Date: 8/25/2023
Index Number: 9100.31-00, 1362.01-03

Third Party Communication: None
Date of Communication: Not Applicable

Person To Contact:
----------------------, ID No. -----------------
Telephone Number: --------------------
Refer Reply To: CC:PSI:B03
PLR-101931-23
Date: May 26, 2023

Legend

X = ----------------------------------------------------------------------------------------------------
State = --------
Date = ------------------

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

   This letter responds to a letter dated October 6, 2022, written on behalf of X requesting that the Service grant X an extension of time under § 301.9100-3 of the Procedure and Administration Regulations to elect to be treated as an association taxable as a corporation for federal tax purposes, and relief to file a late S corporation election under § 1362(b)(5) of the Internal Revenue Code (Code).

                                FACTS

  The information submitted states that X is a limited liability company formed on Date under the laws of State. X's sole shareholder intended for X to be an S corporation for federal tax purposes effective Date. However, X did not timely file the Form 8832, Entity Classification Election, or the Form 2553, Election by a Small Business Corporation.

                          LAW AND ANALYSIS

  Section 1362(a)(1) provides that a small business corporation may elect to be an S corporation.

   Section 1362(b)(1) provides that an election under § 1362(a) may be made by a small business corporation for any taxable year at any time during the preceding taxable year, or at any time during the taxable year and on or before the 15th day of the third month of the taxable year.

    Section 1362(b)(5) provides that if an election under § 1362(a) is made for any taxable year (determined without regard to § 1362(b)(3)) after the date prescribed by § 1362(b) for making the election for the taxable year or no election is made for any taxable year, and the Secretary determines that there was reasonable cause for the failure to timely make the election, then the Secretary may treat the election as timely made for the taxable year (and § 1362(b)(3) shall not apply).

    Section 301.7701-3(a) provides 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. Elections are necessary only when an eligible entity chooses to be classified initially as other than the default classification or when an eligible entity chooses to change its classification.

  Section 301.7701-3(b)(1) provides that 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 that an eligible entity may elect to be classified other than as provided under § 301.7701-3(b) by filing Form 8832 with the appropriate service center. Section 301.7701-3(c)(1)(iii) provides that 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.

   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 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 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 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, Entity Classification Election, with the appropriate service center to elect to be treated as an association taxable as a corporation for federal tax purposes, effective Date. A copy of this letter should be attached to the Form 8832.

    In addition, based solely on the facts submitted and representations made, we conclude that X has established reasonable cause for failing to make a timely S corporation election. Thus, we conclude that X is eligible for relief under § 1362(b)(5). Accordingly, if X makes an election to be an S corporation effective Date by filing a completed Form 2553 with the appropriate service center within 120 days following the date of this letter, the election will be treated as timely made. A copy of this letter should be attached to the Form 2553 filed with the service center. A copy is enclosed for that purpose.

  The rulings contained in this letter are 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.

   Except as expressly provided herein, we express or imply no opinion concerning the federal income tax consequences of the facts of this case under any other provision of the Code and regulations thereunder, including whether X was or is a small business corporation under § 1361(b).

  This ruling is directed only to the taxpayer requesting it. Section 6110(k)(3) provides that it may not be used or cited as a precedent.

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

                                  Sincerely,

                                  Associate Chief Counsel
                                  (Passthroughs & Special Industries)

                                                  /S/
                           By:    _______________________________
                                  Richard T. Probst
                                  Senior Technician Reviewer, Branch 3
                                  Office of the Associate Chief Counsel
                                  (Passthroughs & Special Industries)

Enclosure
Copy for § 6110 purposes

cc: