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5 Year Rule
By Jason Watson, CPA
Posted Tuesday, October 5, 2021
S Corps that lose their “S” status must typically wait five years before being able to re-elect it. As mentioned, deliberately violating one of the rules, such as transferring stock to an ineligible shareholder, is not a good thing. What happens if it was unintentional? The IRS in private ruling letters has on a case-by-case basis allow S Corps to remain as such if the event causing termination was not reasonably within the control of the owners. This is hard to demonstrate, and by the way, private letter rulings (PLRs) can cost thousands of dollars to submit.
In other cases, the IRS has relented and allowed an S Corp to continue when there is a more than 50% change in ownership. Details. Details. So, a business becomes an S Corporation. Revokes the election. Then has a greater than 50% change in ownership within five years. Begs to the IRS. Perhaps is granted an early S Corp election.
Another option is to relight with another entity. You have LLC A, and tax it as an S corporation. You bounce along, and then decide to revoke the S Corp election. A few years later, you want to re-elect S Corp status. Not good. One solution we see is a small business owner starting LLC B, taxing it as an S Corp, and then moving operations over to this new entity. More discussion is required of course; one of the problems is if LLC A had a government contract (such as defense or transportation) or an approval (such as Medicare), these cannot be easily transferred.
Taxpayer's Comprehensive Guide to LLCs and S Corps 2021-2022 Edition
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