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LATE S CORP ELECTION TO BE TREATED AS TIMELY.

JUL. 21, 2009

LTR 200944023

DATED JUL. 21, 2009
DOCUMENT ATTRIBUTES
Citations: LTR 200944023

Third Party Communication: None

 

Date of Communication: Not Applicable

 

Person To Contact: * * *, ID No. * * *

 

Telephone Number: * * *

 

 

Index Number: 1362.01-03

 

Release Date: 10/30/2009

 

Date: July 21, 2009

 

 

Refer Reply To: CC:PSI:B03 - PLR-128397-09

 

 

LEGEND:

 

 

Company = * * *

 

Shareholders = * * *

 

Date1 = * * *

 

Date2 = * * *

 

State = * * *

 

 

Dear * * *:

This letter responds to a letter dated April 7, 2009, and subsequent correspondence, submitted on behalf of Company by Company's authorized representative, requesting a ruling under § 1362(b)(5) of the Internal Revenue Code.

 

FACTS

 

 

Company was incorporated under the laws of State on Date1. Company represents that it was the intent of Shareholders for Company to be an S corporation as of Date2. However, Company's Form 2553, Election by a Small Business Corporation, was not timely filed.

Company represents that both Company and Shareholders have reported their income consistent with Company's intended status as an S corporation. Company requests a ruling that it will be recognized as an S corporation effective Date2.

 

LAW AND ANALYSIS

 

 

Section 1362(a)(1) provides that, except as provided in § 1362(g), a small business corporation may elect, in accordance with the provisions of § 1362, 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 (A) at any time during the preceding taxable year, or (B) 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)(3) provides that if (A) a small business corporation makes an election under § 1362(a) for any taxable year, and (B) the election is made after the 15th day of the third month of the taxable year and on or before the 15th day of the third month of the following taxable year, then such election shall be treated as made for the following taxable year.

Section 1362(b)(5) provides that if (A) 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 § 1362(a) election is made for any taxable year, and (B) the Secretary determines that there was reasonable cause for the failure to timely make such election, the Secretary may treat the election as timely made for the taxable year (and § 1362(b)(3) shall not apply).

 

CONCLUSION

 

 

Based solely on the facts submitted and representations made, we conclude that Company has established reasonable cause for failing to make an S corporation election. Thus, we conclude that Company is eligible for relief under § 1362(b)(5). Accordingly, if Company makes an election to be an S corporation by filing with the appropriate service center a completed Form 2553 effective Date2 within 60 days following the date of this letter, we rule that the election shall be treated as timely made. A copy of this letter should be attached to Form 2553.

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 as to whether Company otherwise qualifies as a subchapter S corporation under § 1361.

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.

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.

In accordance with the power of attorney on file with this office, a copy of this letter is being sent to your authorized representative.

Sincerely,

 

 

Tara P. Volungis

 

Senior Technician Reviewer,

 

Branch 3

 

Office of the Associate Chief

 

Counsel

 

(Passthroughs & Special Industries)

 

Enclosures (2)

 

A copy of this letter

 

A copy for § 6110 purposes
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