Can I Make a Late Check-the-Box Election (Form 8832) for My Foreign Entity?
Yes. If you missed the deadline to file Form 8832 (Entity Classification Election) for your foreign entity, Revenue Procedure 2009-41 provides a simplified method to make a late election without requesting a private letter ruling, as long as you meet three conditions (IRS: Rev. Proc. 2009-41).
Three requirements for late election relief under Rev. Proc. 2009-41:
| Requirement | What It Means |
| 1. Intended election | You can show the entity intended to be classified differently from the default since formation or the desired effective date |
| 2. Reasonable cause | You have a legitimate reason for the late filing (unfamiliarity with U.S. rules, reliance on a preparer, etc.) |
| 3. Consistent treatment | All owners and the entity filed all required returns consistent with the desired classification for every affected year |
How to file a late election:
- File Form 8832 with “FILED PURSUANT TO REV. PROC. 2009-41” written at the top
- Attach a reasonable cause statement explaining why the election was not filed on time
- The effective date can be retroactive to the entity’s formation date if all three conditions are met
- No user fee required (unlike a private letter ruling, which costs $3,500+)
Why this matters for expats:
- Many expats form foreign LLCs or GmbHs without realizing the entity defaults to corporation status under U.S. rules, triggering Form 5471 and GILTI inclusions
- A late check-the-box election to treat the entity as disregarded eliminates the CFC classification retroactively, removing Form 5471 and GILTI exposure for all affected years
- Without Rev. Proc. 2009-41 relief, you would need to request a private letter ruling from the IRS, which takes 6-12 months and costs thousands in fees
If you do not meet all three Rev. Proc. 2009-41 requirements (for example, you filed returns treating the entity as a corporation), you must pursue a private letter ruling instead.
For more, see our Form 8832 guide.
Last updated on April 29, 2026
