Late S Election for a corp that did not file the S election timely

Rev. Proc. 2013-30 facilitates the grant of relief to late-filing entities by consolidating numerous other revenue procedures into one revenue procedure and extending relief in certain circumstances. This procedure provides guidance for relief for late:

• S corporation elections,
• Electing Small Business Trust (ESBT) elections,
• Qualified Subchapter S Trust (QSST) elections,
• Qualified Subchapter S Subsidiary (QSub) elections, and
• Corporate classification elections which the entity intended to take effect on the same date that the S corporation election would take effect.

Generally, the relief under the revenue procedure can be granted when the entity fails to qualify solely because it failed to file the appropriate election under Subchapter S timely with the applicable IRS Campus and all returns reported income consistently as if the election was in effect. Please note that for purposes of this guidance, the “effective date” is the date the election is intended to be effective.

In addition, the revenue procedure also increases the timeframe that allows relief, from 24 months from the due date of the election, to 3 years and 75 days of the effective date of the election. 

To assist in determining if an entity qualifies for late election relief, Rev. Proc. 2013-30 includes flow charts, as well as specific guidance for each of the five categories listed above.

If an entity does not qualify for relief under Rev. Proc. 2013-30, the entity may request relief by requesting a private letter ruling. The procedural requirements for requesting a letter ruling and the associated fees are described in Rev. Proc. 2016-1 (PDF) (or its successor).

Again, it is important to know that Rev. Proc. 2013-30 relief is only for late elections that would otherwise be valid. For example, the S election must still contain signatures from all of the shareholders. Also, if there was an invalid shareholder or the corporation was not qualified during any part of the tax year, the S election is not valid for that year. However, for certain inadvertent invalid S corporation elections or QSub elections, relief may be obtained from National Office under IRC §1362(f). 

General Relief Rules for S Corporation Elections

The following requirements must be met in order to qualify for late S corporation election relief by a corporation or entity classified as a corporation:

• The entity intended to be classified as an S corporation, is an eligible entity, and failed to qualify as an S corporation solely because the election was not timely;
• The entity has reasonable cause for its failure to make the election timely;
• The entity and all shareholders reported their income consistent with an S corporation election in effect for the year the election should have been made and all subsequent years; and
• Less than 3 years and 75 days have passed since the effective date of the election (See the Exception to the 3 Years and 75 Day Rule section below).

In addition, if the electing entity is requesting a late corporate classification election to be effective on the same date that the S corporation election was intended to be effective, the requesting entity must also meet the following additional requirements:

• The entity is an eligible entity as defined in Treas. Reg. § 301.7701-3(a);
• The entity failed to qualify as a corporation solely because Form 8832 was not timely filed; and
• The entity timely filed all required federal tax returns consistent with its requested classification as an S corporation.

If the entity qualifies and files timely in accordance with Rev. Proc. 2013-30, the Campus can grant late election relief. If the entity does not qualify under the provisions of the Revenue Procedure, its only recourse is to request a private letter ruling.   

Exception to the 3 Years and 75 Days Rule

Certain entities can qualify for the exception to the 3 years and 75 day rule when:

• The entity is a corporation (i.e., not an LLC seeking an entity classification election);
• The entity failed to qualify as an S corporation solely because the election was not timely field;
• The corporation and all its shareholders reported their income consistent with S corporation status for the year the S election should have been made and for every subsequent taxable year (if any);
• At least 6 months has elapsed since the date on which the corporation filed its tax return for the first year the corporation intended to be an S corporation;
• Neither the corporation nor any of its shareholders was notified by the IRS of any problems regarding the S corporation status within 6 months of the date on which the Form 1120S for the first year was timely filed; and
• The completed Election form includes the statements as described in the revenue procedure.  

Although this exception exists, it is unlikely many situations will qualify since the current system is set up to notify the corporation of the problem with its filing requirement when the return rejects in processing. It could apply to a case where it did not go through normal processing.