IRS preserves S corporation status after trusts made invalid QSST elections

Plain-English summary

A company elected S corporation status while two shareholder trusts attempted to elect qualified subchapter S trust status. The trusts were not eligible to be QSSTs, which made the company's S election ineffective, but they had been eligible to be electing small business trusts. The company and its shareholders reported consistently with S corporation treatment and represented that the error was not motivated by tax avoidance or retroactive planning. The IRS treated the ineffective election as inadvertent under IRC § 1362(f) and allowed the company to remain an S corporation from the requested effective date. The trustees had to file ESBT elections effective as of that date within 120 days.

Ruling snapshot

• Question: Could the company retain S corporation status after two shareholder trusts made QSST elections even though they were eligible only as ESBTs?
• Outcome: Approved.
• Key authorities: IRC §§ 1361 and 1362(f); Treas. Reg. § 1.1361-1(j) and (m).

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 202053004 Third Party Communication: None
Release Date: 12/31/2020 Date of Communication: Not Applicable
Index Number: 1362.04-00
Person To Contact:
------------------------------------------------------------ -------------------, ID No. -----------------
------------------------------------------------------------ Telephone Number:
------------------------------------------------------------ --------------------
----------------------- Refer Reply To:
CC:PSI:B03
PLR-109056-20
Date:
September 30, 2020

LEGEND

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

State = --------

D1 = ------------------

D2 = -------------------------

D3 = ----------------------

Trust 1 = -----------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
--

Trust 2 = -----------------------------------------------------------------------------------------
--

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

   This responds to a letter dated March 16, 2020, and subsequent

correspondence, submitted on behalf of X by its authorized representatives, requesting
a ruling under § 1362(f) of the Internal Revenue Code.

                                                   FACTS

PLR-109056-20 2

    The information submitted states that X was incorporated under the laws of State

on D1. On D2, X converted to a limited liability company for State law purposes, and on
D3 filed Form 8832, Entity Classification Election, to elect to be classified as an
association taxable as a corporation effective D3. X also filed Form 2553, Election by a
Small Business Corporation, to elect to be an S corporation, also effective D3. On this
Form 2553, the income beneficiaries of Trust 1 and Trust 2 elected for their respective
trusts to be treated as qualified subchapter S trusts (QSSTs), also effective D3.
However, X has since learned that neither Trust 1 nor Trust 2 are eligible to be QSSTs,
though they have been eligible to be electing small business trusts (ESBTs) at all times
from D3 and thereafter. As a result, X’s S corporation election was not effective on D3.

   X represents that it and its shareholders, including Trust 1 and Trust 2, have filed

consistently with the treatment of X as an S corporation since D3. X represents that the
ineffective election was not motivated by tax avoidance or retroactive tax planning. X
and its shareholders have agreed to make any adjustments that the Commissioner may
require, consistent with the treatment of X as an S corporation.

                                       LAW

   Section 1361(a)(1) of the Code provides that the term “S corporation” means,

with respect to any taxable year, a small business corporation for which an election
under § 1362(a) is in effect for such year.

   Section 1361(b)(1)(B) provides that the term “small business corporation” means

a domestic corporation which is not an ineligible corporation and which does not have
as a shareholder a person (other than an estate, a trust described in § 1361(c)(2), or an
organization described in § 1361(c)(6)) who is not an individual.

   Section 1361(c)(2)(A)(i) provides that, for purposes of § 1361(b)(1)(B), a trust all

of which is treated (under subpart E of part I of subchapter J of chapter 1) as owned by
an individual who is a citizen or resident of the United States may be an S corporation
shareholder.

   Section 1361(c)(2)(A)(v) provides that, for purposes of § 1362(b)(1)(B), an ESBT

is a permitted shareholder of a small business corporation.

   Section 1361(d)(1) provides that in the case of a QSST for which a beneficiary

makes an election under § 1361(d)(2), the trust is treated as a trust described in
§ 1361(c)(2)(A)(i), and for purposes of § 678(a), the beneficiary of the trust shall be
treated as the owner of that portion of the trust that consists of stock in an S corporation
with respect to which the election under § 1361(d)(2) is made.

  Section 1361(e) provides that an ESBT means any trust if (i) such trust does not

have as a beneficiary any person other than (I) an individual, (II) an estate, (III) an
organization described in § 170(c)(1) which holds a contingent interest in such trust and
PLR-109056-20 3

is not a potential current beneficiary, (ii) no interest in such trust was acquired by
purchase, and (iii) an election under § 1361(e) applies to such trust.

   Section 1361(e)(3) provides that an election under § 1361(e) shall be made by

the trustee. Any such election shall apply to the taxable year of the trust for which made
and all subsequent taxable years of such trust unless revoked with the consent of the
Secretary.

    Section 1.1361-1(m)(2)(i) provides that the trustee of an ESBT must make the

ESBT election by signing and filing, with the service center where the S corporation files
its income tax return, a statement that meets the requirements of § 1.1361-1(m)(2)(ii).

   Section 1.1361-1(m)(2)(iii) provides that the trustee of an ESBT must file the

ESBT election within the time requirements prescribed in § 1.1361-1(j)(6)(iii) for filing a
QSST election (generally within the 16-day-and-2-month period beginning on the day
that the stock is transferred to the trust).

   Section 1361(d)(2)(A) provides that a beneficiary of a QSST may elect to have

§ 1361(d) apply. Section 1.1361-1(j)(6)(ii) provides that the current income beneficiary
of a QSST must make the election under § 1361(d)(2) by signing and filing with the
service center with which the corporation files its income tax returns the applicable form
or a statement including the information listed in § 1.1361-1(j)(6)(ii).

   Section 1362(d)(2) provides that (A) in general, an election under § 1362(a) shall

be terminated whenever (at any time on or after the first day of the first taxable year for
which the corporation is an S corporation) such corporation ceases to be a small
business corporation, and (B) any termination under § 1362(d)(2) shall be effective on
and after the date of cessation.

    Section 1362(f) provides, in part, that if (1) an election under § 1362(a) by any

corporation (A) was not effective for the taxable year for which made (determined
without regard to § 1362(b)(2)) by reason of a failure to meet the requirements of
§ 1361(b) or to obtain shareholder consents or (B) was terminated under § 1362(d)(2)
or (3), (2) the Secretary determines that the circumstances resulting in the
ineffectiveness or termination were inadvertent, (3) no later than a reasonable period of
time after discovery of the circumstances resulting in the ineffectiveness or termination,
steps were taken (A) so that the corporation is a small business corporation or (B) to
acquire the shareholder consents, and (4) the corporation and each person who was a
shareholder of the corporation at any time during the period specified pursuant to
§ 1362(f), agrees to make such adjustments (consistent with the treatment of the
corporation as an S corporation) as may be required by the Secretary with respect to
such period, then, notwithstanding the circumstances resulting in the ineffectiveness or
termination, the corporation will be treated as an S corporation during the period
specified by the Secretary.
PLR-109056-20 4

                                  CONCLUSION

   Based solely on the representations made and the information submitted, we

conclude that X’s S corporation election was ineffective as of D3 because Trust 1 and
Trust 2 were ineligible shareholders. We conclude that the ineffectiveness of X’s S
corporation election was inadvertent within the meaning of § 1362(f).

   Accordingly, pursuant to the provisions of § 1362(f), X will be treated as

continuing to be an S corporation from D3 and thereafter, provided X's S corporation
election was valid and not otherwise terminated under § 1362(d).

   This ruling is contingent on X and its shareholders treating X as having been an

S corporation for the period beginning D3 and thereafter. The trustees of Trust1 and
Trust 2 must file appropriate ESBT elections effective D3 with the appropriate service
center within 120 days of the date of this letter. A copy of this letter should be attached
to each ESBT election.

     Except as specifically set forth above, we express or imply no opinion concerning

the federal tax consequences of the transactions described above under any other
provision of the Code. Specifically, we express or imply no opinion regarding X’s
eligibility to be an S corporation or the eligibility of Trust 1 or Trust 2 to be ESBTs.

   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.

    This ruling is directed only to the taxpayer that requested it. Section 6110(k)(3)

provides that it may not be used or cited as precedent. Pursuant to a power of attorney
on file, a copy of this letter is being sent to X’s authorized representatives.

                                   Sincerely,

                                   /s/

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

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

cc: