S corporation status restored after six trusts missed ESBT elections

Plain-English summary

An S corporation had a shareholder trust that was later administered as six separate trusts, each with its own tax identification number and fiduciary return. The corporation represented that all six trusts qualified as electing small business trusts, but their trustees failed to file the required ESBT elections effective with the corporation's S election. That failure caused the corporation's S status to terminate. The IRS found that the missed elections and resulting termination were inadvertent and were not motivated by tax avoidance or retroactive planning. It ruled that the corporation would continue to be treated as an S corporation if its original election was otherwise valid and not otherwise terminated. Each trustee had 120 days to file an ESBT election with the intended effective date, or the relief would become void.

Ruling snapshot

• Question: Could the corporation retain S status after six shareholder trusts inadvertently failed to file ESBT elections?
• Outcome: Approved, contingent on all six trustees filing ESBT elections within 120 days.
• Key authorities: IRC §§ 1361(a), 1361(b), 1361(e), and 1362(f); Treas. Reg. § 1.1361-1(m)(2)

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 202122002 Third Party Communication: None
Release Date: 6/4/2021 Date of Communication: Not Applicable
Index Numbers: 1362.00-00, 1362.04-00
Person To Contact:
------------------------------ --------------------, ID No. -----------------
-------------------------------------- Telephone Number:
------------------------------ --------------------
---------------------------------------- Refer Reply To:
CC:PSI:B03
PLR-119736-20
Date:
March 09, 2021

LEGEND

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

Trust = ------------------------------------
------------------------

Trust1 = -----------------------------------------------------------------------

Trust2 = ---------------------------------------------------------------------

Trust3 = ---------------------------------------------------------------

Trust4 = ---------------------------------------------------------------------

Trust5 = ----------------------------------------------------------------

Trust6 = -------------------------------------------------------------------------

State = -------------

Date1 = ------------------

Date2 = ----------------------

PLR-119736-20 2

Date3 = --------------------------

n = --

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

   This letter responds to a letter dated September 1, 2020, and subsequent

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

                                           FACTS

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

on Date1 and elected to be treated as an S corporation effective Date2.

   From inception through Date3, Trust was administered as a single trust. Trust

was a shareholder in X. Trust was divided into n separate shares (Trusts1-6), each with
a separate EIN and each filing a separate fiduciary income tax returns. X represents
that Trusts1-6 qualified as electing small business trusts (ESBTs) within the meaning of
§ 1361(e). However, the trustees of Trusts1-6 failed to make elections under §
1361(e)(3) to treat Trusts1-6 as ESBTs effective Date2. As a result, X's S corporation
election terminated.

   X represents that the failure to file ESBT elections for Trusts1-6 and the resulting

termination were inadvertent and were not motivated by tax avoidance or retroactive tax
planning. Further, X and its shareholders agree to make any adjustments consistent
with the treatment of X as an S corporation as may be required by the Secretary.

                                           LAW

    Section 1361(a)(1) 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) defines a “small business corporation” as a domestic

corporation which is not an ineligible corporation and which does not (A) have more
than 100 shareholders; (B) 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; (C) have a nonresident alien as a shareholder; and (D) have more than
one class of stock.

PLR-119736-20 3

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

may be an S corporation shareholder.

     Section 1361(e)(1)(A) 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)(2), (3), (4), or (5), or (IV) an organization
described in § 170(c)(1) which holds a contingent interest in such trust and 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) of the Income Tax Regulations provides, in relevant

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

by any corporation 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, (2) the Secretary determines that the
circumstances resulting in such ineffectiveness were inadvertent; (3) no later than a
reasonable period of time after discovery of the circumstances resulting in such
ineffectiveness, steps were taken so that the corporation for which the election was
made is a small business corporation; and (4) the corporation for which the election was
made, and each person who was a shareholder in such corporation at any time during
the period specified pursuant to § 1362(f), agrees to make the adjustments (consistent
with the treatment of such corporation as an S corporation) as may be required by the
Secretary with respect to such period, then, notwithstanding the circumstances resulting
in such ineffectiveness, such corporation shall be treated as an S corporation during the
period specified by the Secretary.

                                  CONCLUSION

   Based solely on the facts submitted and the representations made, we conclude

that X’s S corporation election terminated when the trustees of Trusts1-6 failed to file
ESBT elections under § 1361(e)(3). We further conclude that the termination of X’s S
corporation election was inadvertent within the meaning of § 1362(f). Therefore, under §

PLR-119736-20 4

1362(f) X will be treated as an S corporation on and after Date 2, provided X’s S
corporation election was otherwise valid and not otherwise terminated under § 1362(d).

   This ruling is contingent on the trustees of Trusts1-6 each filing within 120 days

of the date of this letter an ESBT election effective Date 2 with the appropriate service
center. A copy of this letter should be attached to each election.

   If the above conditions are not met, then this ruling is null and void. In addition, if

these conditions are not met, X must send notification that its S corporation election has
terminated to the service center with which X’s S corporation election was filed.

     Except as specifically ruled upon above, we express or imply no opinion

concerning the federal tax consequences of the facts of this case 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 Trusts1-6 to be ESBTs.

  This ruling is directed only to the taxpayer who requested it. According to

§ 6110(k)(3) of the Code, this ruling 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.

    Pursuant to the power of attorney on file with this office, we are sending a copy of

this letter to your authorized representatives.

                                          Sincerely,


                                           Wendy Kribell
                                           Senior Technician Reviewer, Branch 3
                                           Office of the Associate Chief Counsel
                                           (Passthroughs & Special Industries)

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

cc: