Foreign subsidiary receives late disregarded-entity election relief

Plain-English summary

A foreign entity wholly owned by a foreign parent ultimately owned by a U.S. citizen failed to timely file Form 8832. It sought disregarded-entity treatment retroactive to its formation and represented that it was eligible to make that classification election. The IRS granted relief under Treasury Regulation sections 301.9100-1 and 301.9100-3 and allowed 120 days to file the form. As a condition, the entity and owner had to file all required original and amended returns within 120 days, including Forms 8858 reflecting the disregarded status. The ruling did not confirm substantive eligibility or waive any interest, additions to tax, or penalties for late filings.

Ruling snapshot

• Question: Could the foreign subsidiary file Form 8832 late and obtain disregarded treatment from its formation date?
• Outcome: Approved, subject to the election and consistent returns being filed within 120 days.
• Key authorities: Treas. Reg. §§ 301.7701-3 and 301.9100-1 through 301.9100-3

Full text (IRS public release)

Internal Revenue Service                                     Department of the Treasury
                                                             Washington, DC 20224

Number: 201922016                                            Third Party Communication: None
Release Date: 5/31/2019                                      Date of Communication: Not Applicable
Index Numbers: 7701.02-00, 9100.00-00,
              9100.31-00                                     Person To Contact:
                                                             -------------------------, ID No. -------------
----------------------------                                 Telephone Number:
-------------------------                                    ---------------------
-----------------------                                      Refer Reply To:
------------------------------                               CC:PSI:B03
                                                             PLR-115199-18
                                                             Date:
                                                             February 11, 2019




                                                  LEGEND

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

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

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

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

Individual     = -------------------------------------------------------------------------------------------------
                 ----------------------------


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

       This letter responds to a letter dated April 30, 2018, 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

        X was formed under the laws of Country on Date 1. X is wholly owned by Y, a
foreign entity that is wholly owned by Individual. Individual is a U.S. citizen. X
represents that it is a foreign entity eligible to elect to be classified as a disregarded
entity for federal tax purposes. However, X failed to timely file Form 8832, Entity
PLR-115199-18                             2

Classification Election, to be treated as a disregarded entity for federal tax purposes
effective Date 1.

                                   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
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)
defines a regulatory election as an election whose due date is prescribed by a
regulation published in the Federal Register, or a revenue ruling, revenue procedure,
notice or announcement published in the Internal Revenue Bulletin.
PLR-115199-18                                 3

      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 and its owner filing, accurately and completely,
within 120 days from 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, 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.

       Further, we express no opinion concerning the assessment of any interest,
additions to tax, additional amounts, or penalties for failure to file a timely income tax or
information return with respect to any taxable year that may be affected by this ruling.
For example, we express no opinion as to whether a taxpayer is entitled to relief from
any penalty on the basis that the taxpayer had reasonable cause for failure to file timely
any income tax or information returns.
PLR-115199-18                                 4

      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.

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

       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: ___________________________________
                                     James A. Quinn
                                     Senior Counsel, Branch 3
                                     Office of Associate Chief Counsel
                                     (Passthroughs & Special Industries)


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