Foreign entity receives late disregarded-entity election relief

Plain-English summary

A taxpayer wholly owned a foreign eligible entity but mistakenly believed an S corporation subsidiary owned it. The foreign entity intended to be treated as disregarded from its formation date but did not timely file Form 8832. The IRS found that the entity met the standards for regulatory-election relief. It granted 120 days to file the election with the intended effective date. The relief also required the entity, the S corporation, and the taxpayer to file all consistent tax and information returns, including Forms 8858, within 120 days.

Ruling snapshot

• Question: Could the foreign entity make a late election to be disregarded from its formation date?
• Outcome: Approved, conditioned on filing Form 8832 and all consistent returns within 120 days.
• Key authorities: Treas. Reg. §§ 301.7701-3 and 301.9100-3.

Full text (IRS public release)

Internal Revenue Service                                     Department of the Treasury
                                                             Washington, DC 20224

Number: 201636002                                            Third Party Communication: None
Release Date: 9/2/2016                                       Date of Communication: Not Applicable
Index Numbers: 9100.00-00, 9100.31-00
                                                             Person To Contact:
----------------------------                                 -------------------------, ID No. ------------
--------------------------                                   Telephone Number:
---------------------------                                  --------------------
-------------------------                                    Refer Reply To:
-------------------------------                              CC:PSI:B03
                                                             PLR-100325-16
                                                             Date:
                                                             June 02, 2016




                                                   LEGEND

Taxpayer = --------------------------------------------------------------------------------------------------------------------

Country        = ----------

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

Year 1         = ------

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

Y              = --------------------------------------------------------------------------------------------------------------------



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

       This letter responds to a letter dated October 12, 2015, 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 treat X as a disregarded entity for
federal tax purposes.




                                                 FACTS
PLR-100325-12                              2


       X was formed under the laws of Country on Date 1. Since Date 1, X has been
wholly owned by Taxpayer. However, until Year 1, Taxpayer mistakenly believed that
X was wholly owned by Y, an S corporation that is wholly owned by Taxpayer.

        X represents that it is a foreign entity eligible to elect to be classified as a
disregarded entity for federal tax purposes. X intended to be classified as a disregarded
entity effective Date 1. However, due to inadvertence, X failed to timely file Form 8832,
Entity Classification Election.

                                   LAW AND ANALYSIS

        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 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, unless it 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 that 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 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 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 can not be more than 75 days prior to the date on which the
election is filed and can not be more than 12 months after the date on which the election
is filed.

      Section 301.9100-1(c) provides that the Commissioner may grant a reasonable
extension of time to make a regulatory election, or a statutory election (but no more than
PLR-100325-16                                 3



six 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) defines a regulatory
election as an election whose due date is prescribed by a regulation published in the
Federal Register, or revenue ruling, revenue procedure, notice or announcement
published in the Internal Revenue Bulletin.

      Section 301.9100-2 provides the rules governing automatic extensions of time for
making certain elections.

        Section 301.9100-3 provides extensions of time for making 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 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 information submitted and the 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
properly executed Form 8832 with the appropriate service center electing to be treated
as a disregarded entity effective Date 1. A copy of this letter should be attached to the
Form 8832.

        This ruling is contingent on X, Y, and Taxpayer filing within 120 days of the date
of this letter all required federal income tax and information returns (including amended
returns) for all years consistent with the requested relief. These returns must include,
but are not limited to, Form 8858, Information Return of U.S. Persons With Respect To
Foreign Disregarded Entities, such that these forms reflect the consequences of the
relief granted in this letter. A copy of this letter should be attached to any such returns.

       Except as expressly provided herein, we express or imply no opinion concerning
the federal tax consequences of any aspect of any transaction or item discussed or
referenced in this letter. 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. Section 6110(k)(3) of
the Internal Revenue Code provides that it may not be used or cited as precedent.

        Pursuant to a power of attorney on file with this office, we are sending a copy of
this letter to X’s authorized representative.
PLR-100325-16                               4




       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.

                                     Sincerely,

                                     Associate Chief Counsel
                                     (Passthroughs & Special Industries)



                                By: ___________________________________
                                    Bradford Poston
                                    Senior Counsel, Branch 3
                                    Office of Associate Chief Counsel
                                    (Passthroughs & Special Industries)



Enclosures (2):
      Copy of this letter
      Copy for § 6110 purposes


cc: