Foreign entity received 120 days to file a late partnership classification election

Plain-English summary

A foreign eligible entity intended to be classified as a partnership for federal tax purposes but inadvertently failed to file Form 8832 on time. The IRS found that the entity satisfied the standards for discretionary late-election relief under the Section 9100 regulations. It granted 120 days to file Form 8832 with the intended effective date. The entity must also file all required tax and information returns for open years, including applicable Forms 8865, consistently with partnership treatment within the same 120-day period. The election may be disregarded for Section 965 calculations if recognizing it would change a U.S. shareholder's Section 965 elements.

Ruling snapshot

• Question: May a foreign eligible entity file a late Form 8832 electing partnership classification?
• Outcome: approved, with a 120-day extension and consistent-return conditions
• Key authorities: Treas. Reg. §§ 301.7701-3, 301.9100-1, 301.9100-3; IRC § 965

Full text (IRS public release)

Internal Revenue Service                                     Department of the Treasury
                                                             Washington, DC 20224

Number: 202431007                                            Third Party Communication: None
Release Date: 8/2/2024                                       Date of Communication: Not Applicable
Index Number: 7701.00-00, 9100.00-00,
              9100.31-00                                     Person To Contact:
                                                             --------------------, ID No. -----------------
--------------------------                                   Telephone Number:
------------------------                                     --------------------
---------------------------------------------                 Refer Reply To:
-------------------                                          CC:PSI:B01
-------------------------------------------                  PLR-121719-23
-------------------------------------------------------      Date:
--------------------------------------                       April 26, 2024




                                                   LEGEND

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

Country             =       ---------------------------


Date                =       ---------------------




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

This letter responds to a letter dated October 31, 2023, and subsequent
correspondence, submitted on behalf of X by its authorized representatives, requesting
an extension of time under § 301.9100-3 of the Procedure and Administration
Regulations to file an election under § 301.7701-3 to be classified as a partnership
effective Date.

                                                    FACTS

According to the information submitted, X was formed under the laws of Country on
Date. X represents it is a foreign entity eligible to be classified as a partnership effective
Date. However, due to inadvertence, X failed to file Form 8832, Entity Classification
Election, electing to classify X as a partnership effective Date.

PLR-121719-23                                  2


                                   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. An eligible entity with at least two
members can elect to be classified as either an association or a partnership, and an
eligible entity with a single owner can elect to be classified as an association or to be
disregarded as an entity separate from its owner.

Section 301.7701-3(b)(2)(i) provides that, except as provided in § 301.7701-3(b)(3),
unless the entity elects otherwise, a foreign eligible entity is (A) a partnership if it has
two or more members and at least one member does not have limited liability; (B) an
association if all members have limited liability; or (C) disregarded as an entity separate
from its owner if it has a single owner that does not have limited liability. Section
301.7701-3(b)(2)(ii) provides that, for purposes of § 301.7701-3(b)(2)(i), a member of a
foreign eligible entity has limited liability if the member has no personal liability for the
debts of or claims against the entity by reason of being a member.

Section 301.7701-3(c)(1)(i) provides that an eligible entity may elect to be classified
other than provided under § 301.7701-3(b) or change its classification by filing Form
8832 with the service center designated on Form 8832.

Section 301.7701-3(c)(1)(iii) provides, in part, that an election made under § 301.7701-
3(c)(1)(i) will be effective on the date specified by the entity on Form 8832 or on the
date filed if no date is specified on the election form. The effective date specified on
Form 8832 cannot be more than 75 days prior to the date on which the election is filed
and cannot be more than 12 months after the date on which the election is filed.

Section 301.9100-1(c) provides that the Commissioner may grant a reasonable
extension of time to make a regulatory election, or a statutory election (but no more than
6 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. Section 301.9100-1(b) defines
the term “regulatory election” as an election whose due date is prescribed by a
regulation published in the Federal Register or a revenue ruling, revenue procedure,
notice, or announcement published in the Internal Revenue Bulletin.

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 the election. Section
301.9100-2 provides 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.

PLR-121719-23                                 3

Under § 301.9100-3, a request for relief will be granted when the taxpayer provides
evidence to establish to the satisfaction of the Commissioner that (1) the taxpayer acted
reasonably and in good faith, and (2) granting relief will not prejudice the interests of the
government.

                                     CONCLUSION

Based on the facts submitted and the representations made, we conclude that the
requirements of §§ 301.9100-1 and 301.9100-3 have been satisfied. As a result, X is
granted an extension of time of 120 days from the date of this letter to file Form 8832
with the appropriate service center to elect under § 301.7701-3 to be classified as a
partnership effective Date. A copy of this letter should be attached to the Form 8832.

This ruling is contingent upon X filing, within 120 days from the date of this letter, all
required federal income tax returns and information returns (including amended returns)
for all open years consistent with the relief granted in this letter. These returns include
but are not limited to Forms 8865, Returns of US Persons with Respect to Certain
Foreign Partnerships, for all required taxable years consistent with X having made a
timely election effective Date to be treated as a partnership for federal income tax
purposes. If this condition is not met, then this ruling is null and void. A copy of this
letter should be attached to any such returns.

If applicable, this entity classification election to classify X as a partnership is
disregarded for purposes of determining the amounts of all § 965 elements of all United
States shareholders of X if the election otherwise would change the amount of any
§ 965 element of any United States shareholder. See § 1.965-4(c)(2) of the Income Tax
Regulations.

Except as specifically set forth above, we express or imply no opinion concerning the
assessment of any interest, additions to tax, additional amounts, or penalties for failure
to file a timely income tax or information return with respect to any taxable year that may
be affected by this ruling. For example, we express or imply no opinion as to whether a
taxpayer is entitled to relief from any penalty on the basis that the taxpayer had
reasonable cause for failure to file timely any income tax or information returns.

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

PLR-121719-23                                            4

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,


                                                    Holly Porter
                                                    Associate Chief Counsel
                                                    (Passthroughs & Special Industries)


                                                    By:    ___________/s/_______________
                                                    Joy C. Spies
                                                    Senior Technician Reviewer, Branch 1
                                                    Office of the Associate Chief Counsel
                                                    (Passthroughs & Special Industries)


Enclosure
      Copy of Letter for § 6110 purposes



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