Late election granted to treat an S corporation stock sale as an asset sale

Plain-English summary

A buyer (taxed as a partnership) bought all the stock of an S corporation. The parties wanted the stock purchase to be treated, for tax purposes, as if the company had sold its assets, which a § 336(e) election allows for a "qualified stock disposition." Making that election requires a binding written agreement among the shareholders and the target plus an election statement attached to the target's return, all by the return's due date. The election statement was never timely filed, so the parties asked for relief under Treasury Regulation § 301.9100-3. The IRS found the parties reasonably relied on a tax professional who failed to file, that they acted in good faith, and that relief would not prejudice the government. It granted 75 days to file the election statement (and 150 days to file or amend related returns), conditioned on aggregate tax liability being no lower than if the election had been timely. This matters because a § 336(e) election can give the buyer a stepped-up basis in the assets; missing the deadline would forfeit that benefit.

Ruling snapshot

• Question: Should the parties get an extension of time under § 301.9100-3 to file a late § 336(e) election statement treating an S corporation stock sale as an asset sale?
• Outcome: approved (75 days to file the election statement; conditions apply)
• Key authorities: IRC § 336(e); Treas. Reg. §§ 1.336-1, 1.336-2(h)(3), 301.9100-3

Full text (IRS public release)

 Internal Revenue Service                                         Department of the Treasury
                                                                  Washington, DC 20224

 Number: 202310010                                                Third Party Communication: None
 Release Date: 3/10/2023                                          Date of Communication: Not Applicable
 Index Number: 336.00-00, 336.05-00,
               9100.00-00                                         Person To Contact:
                                                                  --------------------, ID No. -----------------
 --------------------------                                       Telephone Number:
 -------------------------------                                  --------------------
 ----------------------------------------                         Refer Reply To:
 ------------------------------                                   CC:CORP:2
                                                                  PLR-119492-22
                                                                  Date:
                                                                  December 13, 2022




Legend

 S Corporation Target             =         -------------------------------------------------------------------------
                                            -------------------------------------------------------------------------
                                            -----------------------

 Shareholders                     =         -------------------------------------------------------------------------
                                            -------------------------------------------------------------------------
                                            -------------------------------------------------------------------------
                                            -------------------

 Purchaser                        =         -------------------------------------------------------------------------
                                            -----------------------

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

 Company Official                 =         -------------------------------------------------------------------------
                                            -------------------------------------------------------------------------
                                            --------

 Tax Professional                 =         -------------------------------------------------------------------------
                                            ----------------------------------


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

This letter responds to a letter dated September 22, 2022, submitted on behalf of S
Corporation Target, Shareholders, and Purchaser (collectively, the "Parties"),
requesting an extension of time under §301.9100-3 of the Procedure and Administration
Regulations to file an election. The Parties are requesting an extension of time to file an
PLR-119492-22                                 2

election statement under §1.336-2(h)(3)(iii) of the Income Tax Regulations ("Election
Statement") with respect to Purchaser's acquisition of all the stock of S Corporation
Target from Shareholders on Date 1. The material information submitted is summarized
below.

On Date 1, Purchaser, an entity treated as a partnership for federal tax purposes,
acquired all the stock of S Corporation Target from Shareholders (the "Stock
Disposition"). It has been represented that the Stock Disposition qualified as a
"qualified stock disposition" as defined in §1.336-1(b)(6).

The Parties intended for the stock sale to be treated as an asset sale, but for various
reasons, a timely election was not made. Subsequently, a request was submitted under
§301.9100-3 for an extension of time to file the Election Statement. The Parties each
represented that they are not seeking to alter a return position for which an accuracy-
related penalty has been or could be imposed under section 6662.

Regulations promulgated under section 336(e) permit certain sales, exchanges, or
distributions of stock of a corporation to be treated as asset dispositions if: (1) the
disposition is a "qualified stock disposition" as defined in §1.336-1(b)(6); and (2) a
section 336(e) election is made.

Section 1.336-2(h)(3) provides that a section 336(e) election for an S corporation target
is made by: (i) all of the S corporation shareholders, including those who do not dispose
of any stock in the qualified stock disposition, and the S corporation target entering into
a written, binding agreement, on or before the due date (including extensions) of the
federal income tax return of the S corporation target for the taxable year that includes
the disposition date, to make a section 336(e) election; (ii) the S corporation target
retaining a copy of the written agreement; and (iii) the S corporation target attaching the
section 336(e) election statement, described in §1.336-2(h)(5) and (6), to its timely filed
(including extensions) federal income tax return for the taxable year that includes the
disposition date.

Under §301.9100-1(c), the Commissioner has discretion to 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 except subtitles E, G, H, and I.

Sections 301.9100-1 through 301.9100-3 provide the standards the Commissioner will
use to determine whether to grant an extension of time to make a regulatory election.
Section 301.9100-1(a). Section 301.9100-2 provides automatic extensions of time for
making certain elections. Requests for relief under §301.9100-3 will be granted when
the taxpayer provides evidence to establish to the satisfaction of the Commissioner that
the taxpayer acted reasonably and in good faith, and that granting relief will not
prejudice the interests of the government. Section 301.9100-3(a).
PLR-119492-22                                 3

The time for filing the Election Statement is fixed by the regulations (i.e., §1.336-
2(h)(3)(iii)). Therefore, the Commissioner has discretionary authority under §301.9100-
3 to grant an extension of time to file the Election Statement, provided the Parties acted
reasonably and in good faith, the requirements of §§301.9100-1 and 301.9100-3 are
satisfied, and granting relief will not prejudice the interests of the government.

Information, affidavits, and representations submitted by the Parties, Company Official,
and Tax Professional explain the circumstances that resulted in the failure to timely file
the Election Statement. The information establishes that the Parties reasonably relied
on a qualified tax professional who failed to timely file, or to advise them to timely file,
the Election Statement, and the request for relief was filed before the failure to file the
Election Statement was discovered by the Internal Revenue Service. See §301.9100-
3(b)(1)(i) and (v).

Based on the facts and information submitted, including the representations made, we
conclude that the Parties have acted reasonably and in good faith, the requirements of
§§301.9100-1 and 301.9100-3 are satisfied, and granting relief will not prejudice the
interests of the government. Accordingly, an extension of time is granted under
§301.9100-3, until 75 days from the date on this letter, to file the Election Statement
with respect to the Stock Disposition.

WITHIN 75 DAYS OF THE DATE ON THIS LETTER, S Corporation Target must file the
Election Statement in accordance with §1.336-2(h)(3)(iii). The Election Statement must
be attached to S Corporation Target's tax return for the taxable year including Date 1.
Alternatively, if S Corporation Target files its return electronically, it may satisfy the
requirement of attaching a copy of this letter to the return by attaching a statement to its
return that provides the date on, and control number (PLR-119492-22) of, this letter
ruling.

WITHIN 150 DAYS OF THE DATE ON THIS LETTER, all relevant parties must file or
amend, as applicable, all returns and amended returns (if any) necessary to report the
transaction consistently with the making of a section 336(e) election for the taxable year
in which the transaction was consummated (and for any other affected taxable year).
The above extension of time is conditioned on the Parties' tax liabilities (if any) being not
lower, in the aggregate, for all years to which the section 336(e) election applies than
such liabilities would have been if the Election Statement had been timely filed (taking
into account the time value of money). No opinion is expressed as to the taxpayers' tax
liabilities for the years involved. A determination thereof will be made by the applicable
Director's office upon audit of the federal income tax returns involved.

We express no opinion as to: (1) whether the Stock Disposition qualifies as a "qualified
stock disposition"; or (2) any other tax consequences arising from the section 336(e)
election.
PLR-119492-22                                  4

In addition, we express no opinion as to the tax consequences of filing the return or
making the section 336(e) election late under the provisions of any other section of the
Code and regulations, or as to the tax treatment of any conditions existing at the time of,
or resulting from, filing the section 336(e) late that are not specifically set forth in the
above ruling. For purposes of granting relief under §301.9100-3, we have relied on
certain statements and representations made by the Parties, Company Official, and Tax
Professional. However, the Director should verify all essential facts. In addition,
notwithstanding that an extension is granted under §301.9100-3 to file the section
336(e) election, penalties and interest that would otherwise be applicable, if any,
continue to apply.

This ruling is directed only to the taxpayers requesting it. Section 6110(k)(3) of the
Code provides that it may not be used or cited as precedent.

Pursuant to the Power of Attorney on file with this office, a copy of this letter is being
sent to your authorized representative.

                                       Sincerely,


                                       Thomas I. Russell
                                       Thomas I. Russell
                                       Chief, Branch 1
                                       Office of Associate Chief Counsel (Corporate)



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