What is a check-the-box election, and when is Form 8832 due?

What the election is A business entity that isn't automatically a corporation is an "eligible entity" and can choose its federal tax classification (Treas. Reg. § 301.7701-3(a)). One with two or more members can be taxed as a corporation (an "association") or a partnership; one with a single owner can be taxed as a corporation or disregarded as separate from its owner. An election is needed only to differ from the default classification or to change it.

Who can't elect Entities that are corporations by definition can't elect. These include an entity organized under a federal or state statute that describes it as incorporated or as a corporation, an insurance company, and the foreign entity types listed in the regulation, often called "per se" corporations (§ 301.7701-2(b)).

Default classifications (no election)

• Domestic: a partnership if it has two or more members; disregarded if it has a single owner (§ 301.7701-3(b)(1)).
• Foreign: a partnership if it has two or more members and at least one doesn't have limited liability; a corporation if all members have limited liability; disregarded if it has a single owner that doesn't have limited liability (§ 301.7701-3(b)(2)).

When Form 8832 is due There is no fixed calendar date. The election takes effect on the date entered on Form 8832, or on the filing date if none is entered, and that date can't be more than 75 days before filing or more than 12 months after (§ 301.7701-3(c)(1)(iii)). So to have it apply from a given date, file within 75 days after that date. A date more than 75 days back is moved to 75 days before filing; a date more than 12 months ahead is moved to 12 months after filing. The IRS's processing manual puts it the same way for an election that starts a tax period: Form 8832 is due "within 75 days of the beginning of the tax period" (IRM 3.13.2.27.3).

Filing and signing File Form 8832 with the service center the form designates (§ 301.7701-3(c)(1)(i)). It must be signed by each member who is an owner when it's filed, or by an officer, manager or member authorized under local law or the entity's organizational documents to make the election (§ 301.7701-3(c)(2)(i)). An entity that files a federal tax or information return for that year attaches a copy of the Form 8832 to it (§ 301.7701-3(c)(1)(ii)).

The 60-month limit After an election that changes its classification, an entity generally can't change again by election for 60 months after the effective date. The IRS may allow it sooner by letter ruling if more than 50% of the ownership is held by people who owned no interest on the filing date or on the prior election's effective date. A newly formed entity's election that is effective on its formation date isn't a change for this purpose (§ 301.7701-3(c)(1)(iv)).

S corporations An eligible entity that timely elects S corporation status is treated as having elected to be a corporation, if it otherwise qualifies as a small business corporation, so it doesn't also need Form 8832 (§ 301.7701-3(c)(1)(v)(C)).

If the deadline was missed

• Rev. Proc. 2009-41: relief for a late Form 8832 requested within 3 years and 75 days of the requested effective date, for a newly formed entity or a valid change, when the entity isn't making an S election. File the Form 8832 stating that relief is requested under Rev. Proc. 2009-41, with a reasonable-cause statement, a declaration of consistent filing signed by all affected parties, and a penalties-of-perjury statement (IRM 3.13.2.27.6).
• Rev. Proc. 2013-30: covers a late Form 8832 only when the classification was meant to take effect on the same date as an S election.
• Otherwise, a private letter ruling under Treas. Reg. § 301.9100-3, which requires showing the entity acted reasonably and in good faith and that relief won't prejudice the government's interests.

For how the election fits with choosing an entity type, see our entity formation and elections guide.