Foreign entity receives 120 days to elect partnership status

Plain-English summary

A foreign eligible entity was classified by default as an association taxable as a corporation for U.S. tax purposes. After its majority indirect owner became a U.S. resident, that owner began reporting the interest as a partnership interest, but the owners did not know they also needed to file Form 8832. The entity represented that it would have made the election on time regardless of later tax-law changes, that it acted reasonably and in good faith, and that relief would not prejudice the government. The IRS granted 120 days to file Form 8832 electing partnership status with the requested retroactive effective date. The election is disregarded when calculating U.S. shareholders’ IRC § 965 elements if giving it effect would change any such amount.

Ruling snapshot

• Question: May the foreign entity make a late Form 8832 election to be treated as a partnership?
• Outcome: Approved (120-day extension granted, subject to the Section 965 limitation).
• Key authorities: Treas. Reg. §§ 301.7701-3 and 301.9100-1 through 301.9100-3; Treas. Reg. § 1.965-4(c)(2).

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 202136001 Third Party Communication: None
Release Date: 9/10/2021 Date of Communication: Not Applicable
Index Number: 9100.31-00
Person To Contact:
------------------------------------------------------- -------------------, ID No. -----------------
---------------------------- Telephone Number:
----------- --------------------
--------------------------------- Refer Reply To:
CC:PSI:03
PLR-100155-21
Date:
June 3, 2021

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

Country = -----------
Date 1 = ---------------------------
Date 2 = ----------------------
Year = ---------

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

   This letter responds to a letter dated December 14, 2020, submitted on behalf of

X, requesting that the Service grant X an extension of time under § 301.9100-3 of the
Procedure and Administration Regulations to elect to be treated as a partnership for
federal tax purposes.

                                                 FACTS

    The information submitted states that X was formed in Country on Date 1. For

U.S. federal income tax purposes, X is a foreign eligible entity whose default
classification is an association taxable as a corporation. X’s majority, indirect owner is a
foreign national who became a U.S. resident in Year. This owner began reporting his
indirect interest in X as a partnership interest beginning with the Year calendar taxable
year. However, no Form 8832, Entity Classification Election, was filed to elect to classify
X as a partnership for US federal income tax purposes, because X’s owners were not
aware of the requirement to file this election. X is requesting an extension of time under
§ 301.9100-3 to make a late entity classification election to be treated as a partnership
for U.S. federal income tax purposes effective Date 2.
PLR-100155-21 2

    X represents that it has acted reasonably and in good faith, that granting relief

will not prejudice the interests of the government, and that it is not using hindsight in
making the election. X further represents that if not for the fact that it was not aware of
the requirement to file an entity classification election, X would have made the entity
classification election as of the election due date regardless of the enactment of the Tax
Cuts and Jobs Act (TCJA) and the issuance of regulations relating to the TCJA.

                               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. Elections are necessary only when an
eligible entity chooses to be classified initially as other than the default classification or
when an eligible entity chooses to change its classification.

  Section 301.7701-3(b)(1) provides that unless the entity elects otherwise, a

domestic eligible entity is: (i) a partnership if it has two or more members; or (ii)
disregarded as an entity separate from its owner if it has a single owner.

    Section 301.7701-3(c)(1)(i) provides that an eligible entity may elect to be

classified other than as provided under § 301.7701-3(b) by filing Form 8832 with the
appropriate service center. Section 301.7701-3(c)(1)(iii) provides that this election will
be effective on the date specified by the entity on Form 8832 or on the date filed if no
such date is specified. The date specified on Form 8832 cannot be more than 75 days
prior to the date on which the election is filed.

   Section 301.9100-1(c) provides that the Commissioner may grant a reasonable

extension of time under the rules set forth in §§ 301.9100-2 and 301.9100-3 to make a
regulatory election, or a statutory election (but not more than 6 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) provides that the term “regulatory election” includes an
election whose due date is prescribed by a regulation published in the Federal Register.

    Section 301.9100-2 provides the rules governing automatic extensions of time for

making certain elections. Section 301.9100-3 provides the standards the Commissioner
will use to determine whether to grant an extension of time for 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 (1) the
taxpayer acted reasonably and in good faith, and (2) the grant of relief will not prejudice
the interests of the Government.

                                   CONCLUSION

PLR-100155-21 3

   Based solely on the facts submitted and 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 Form 8832
with the appropriate service center to elect to be treated as a partnership for federal tax
purposes, effective Date 2. A copy of this letter should be attached to the Form 8832.

  The rulings contained in this letter are 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 request for rulings, it is subject to verification on
examination.

    If applicable, this entity classification election is disregarded for purposes of

determining the amounts of all section 965 elements of all United States shareholders of
X if the election otherwise would change the amount of any section 965 element of any
section 965 element of any such United States shareholder. See §1.965-4(c)(2).

   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.

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

provides that it may not be used or cited as precedent.

     In accordance with the Power of Attorney on file with this office, a copy of this

letter is being sent to X’s authorized representatives.

                                              Sincerely,

                                              Associate Chief Counsel
                                              (Passthroughs and Special Industries)



                                       By:    ______________________________
                                              Wendy L. Kribell
                                              Senior Technician Reviewer, Branch 3
                                              Office of Associate Chief Counsel
                                              (Passthroughs & Special Industries)

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

cc: