Filing form 2553; Election by a Small Business Corporation

To be treated as an S corporation, a corporation must elect S corporation status by filing Form 2553, Election by a Small Business Corporation. Reg. §1.1362-6(a)(2)(i).

Compliance Note

Form 2553 may also be used to file shareholder consents ( Reg. §1.1362-6(b)(3)(i)) and to select a tax year. Reg. §1.1378-1(e).

It is clear that Form 2553 must be used by a corporation to make an effective election. The mere filing of Form 1120S is not sufficient to make a valid S election. Elbaum v. Commissioner, Dec. 50,097(M), TC Memo. 1994-439. If a Form 2553 is not complete and does not provide enough information to the IRS, the election is not effective. Fratantonio v. Commissioner, Dec. 44,703(M), TC Memo. 1988-158. If, however, facts contained in Form 2553 that are not relevant to the corporation’s qualifications to make such an election, or to the validity of its shareholders’ consent, are changed, the changes do not invalidate an otherwise valid election. Rev. Rul. 74-150, 1974-1 CB 241.

The form must be signed by a person authorized to sign Form 1120S (S corporation income tax return). 5 Typically, the persons in the corporation who may sign the form include the president, vice-president, treasurer, assistant treasurer, chief accounting officer or any other officer duly authorized to so act. An unsigned form is not evidence of a firm and clear election. Consequently, the requirement that the Form 2553 be signed by an authorized officer is not merely procedural, but rather a substantive requirement. Smith v. Commissioner, Dec. 44,523(M), TC Memo. 1988-18. When the Form 2553 is being filed by a fiduciary acting as a receiver, trustee in a Title 11 bankruptcy action, or other assignee by court order, the fiduciary should sign the return. Code Sec. 6062.