S corporation gets 120 days to make late QSub elections for four subsidiaries

Plain-English summary

An S corporation wholly owns four subsidiaries and intended to treat each as a qualified subchapter S subsidiary (QSub), which makes the subsidiary disregarded so its income and assets are treated as the parent S corporation's. Making a QSub election requires filing Form 8869, but the company never timely filed it for any of the four subsidiaries, even though it had filed its tax returns as if the elections were in place. It sought relief under Treasury Regulation section 301.9100-3, which lets the IRS extend the deadline for certain elections when the taxpayer acted reasonably and in good faith and the government is not prejudiced. Finding those standards met, the IRS granted 120 days from the letter to file a Form 8869 for each subsidiary effective on the intended dates. It matters because it is a routine fix that lines up the paperwork with how the group has already been filing its taxes.

Ruling snapshot

• Question: Will the IRS extend the deadline for an S corporation to make late QSub elections for four subsidiaries?
• Outcome: Approved (120 days from the letter to file Form 8869 for each subsidiary)
• Key authorities: IRC § 1361(b)(3); Treas. Reg. § 1.1361-3; Treas. Reg. §§ 301.9100-1 through 301.9100-3

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 202147001 Third Party Communication: None
Release Date: 11/26/2021 Date of Communication: Not Applicable
Index Number: 1361.00-00, 1361.05-00,
9100.00-00 Person To Contact:
-----------------, ID No. ---------------
---------------------------------------- Telephone Number:
--------------------------------------- ---------------------
---------------------------------------- Refer Reply To:
--------------------------------------------- CC:PSI:01
PLR-100558-21
PLR-100559-21
PLR-100560-21
PLR-100561-21
Date:
June 30, 2021

Legend

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

Sub 1 = ----------------------------------------------------------------

Sub 2 = -------------------------------------------------------

Sub 3 = -----------------------------------------------------------

Sub 4 = -------------------------------

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

Date 2 = ------------------

Date 3 = ----------------------

State = ----------
PLR-100558-21 2

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

This letter responds to a letter dated December 23, 2020, submitted on behalf of X by
its authorized representative, requesting a ruling under § 1362(f) of the Internal
Revenue Code (Code).

                                       Facts

According to the information submitted and representations within, X was incorporated
under the laws of State. Effective Date 1, X elected to be taxed as an S corporation.

X wholly owns Sub1, Sub 2, Sub 3, and Sub 4. X represents that it intended to elect to
treat Sub1 and Sub 2 as qualified subchapter S subsidiaries (QSubs) effective Date 1,
Sub 3 as a QSub effective Date 2, and Sub 4 as a QSub effective Date 3. However, X
failed to timely file Form 8869, Qualified Subchapter S Subsidiary Election, for Sub1,
Sub 2, Sub 3, and Sub 4. X represents that it has filed its tax returns for all of the
relevant tax years consistent with Sub1, Sub 2, Sub 3, and Sub 4 being QSubs since
Date 1, Date 2, and Date 3, respectively, and that X has acted in good faith. Finally, X
represents that granting relief will not prejudice the interests of the government.

                                 Law and Analysis

Section 1361(b)(3)(A) of the Internal Revenue Code (Code) provides that a QSub shall
not be treated as a separate corporation, and all assets, liabilities, and items of income,
deduction, and credit of a QSub shall be treated as assets, liabilities, and such items (as
the case may be) of the S corporation.

Section 1361(b)(3)(B) defines a QSub as a domestic corporation which is not an
ineligible corporation as defined in § 1361(b)(2), if 100 percent of the stock of the
corporation is held by an S corporation, and the S corporation elects to treat the
corporation as a QSub.

Section 1.1361-3(a) of the Income Tax Regulations provides the time and manner of
making a QSub election. Section 1.1361-3(a)(2) provides that an S corporation makes a
QSub election with respect to a subsidiary by filing a Form 8869 with the appropriate
service center. Section 1.1361-3(a)(4) provides that a QSub election cannot be effective
more than two months and 15 days prior to the date of filing.

Section 1.1361-3(a)(6) provides that an extension of time to make a QSub election may
be available under procedures applicable under §§ 301.9100-1 and 301.9100-3.
PLR-100558-21 3

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 301.9100-2 provides an automatic extension of time for making certain
elections. Section 301.9100-3 provides extensions of time for making 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 facts submitted and the representations made, we conclude that X
has satisfied the requirements of §§ 301.9100-1 and 301.9100-3 with respect to the
QSub elections for Sub 1, Sub 2, Sub 3, and Sub 4. Accordingly, we grant X an
extension of time of 120 days from the date of this letter to file a properly executed Form
8869 for each of Sub 1, Sub 2, Sub 3, and Sub 4 with the appropriate service center
effective Date 1, Date 2, and Date 3, respectively. A copy of this letter should be
attached to the elections.

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. Specifically, we express or imply no opinion as to whether X is
a valid S corporation or whether Sub 1, Sub 2, Sub 3, or Sub 4 is eligible to be a QSub.

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 the 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 who requested it. According to § 6110(k)(3),
this ruling may not be used or cited as precedent.
PLR-100558-21 4

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

                                    Sincerely,


                                  Associate Chief Counsel
                                  (Passthroughs and Special Industries)


                               By: Joy Spies
                                   Joy Spies
                                   Senior Technician Reviewer, Branch 1
                                   Office of the Associate Chief Counsel
                                   (Passthroughs and Special Industries)

Enclosures (2):
Copy for § 6110 purposes

cc: