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Wrong Business Return Filed

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Stuart O. Bronstein

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Feb 5, 2024, 1:23:38 PMFeb 5
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I was consulted by a member of an LLC that is taxed as a partnership. Form
2022 they mistakenly filed Form 1120-S rather than Form 1065. They now
want to fix it.

Do they file a 1065-X? Or do they file a 1065 with a letter explaining
their mistake? It's not really an amended 1065, but it is supposed to
replace the 1120-S.

Thanks for any thoughts.

--
Stu
http://DownToEarthLawyer.com

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Adam H. Kerman

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Feb 5, 2024, 2:33:49 PMFeb 5
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Stuart O. Bronstein <spam...@lexregia.com> wrote:

>I was consulted by a member of an LLC that is taxed as a partnership. Form
>2022 they mistakenly filed Form 1120-S rather than Form 1065. They now
>want to fix it.

>Do they file a 1065-X? Or do they file a 1065 with a letter explaining
>their mistake? It's not really an amended 1065, but it is supposed to
>replace the 1120-S.

>Thanks for any thoughts.

You're not going to like the answer. I asked a retired accountant. She's
quite cynical that IRS will have any interest in being helpful.

There is no amended return to file, not for the 1120-S. Can't file
1065-X given that no 1065 was filed to begin with.

1) Write a lengthy letter of explanation. Beg IRS to ignore the 1120-S
filed in error. They won't, but put it in the letter anyway.

2) As 1065 was the required form, file this. There is no choice. Attach
the letter withdrawing the 1120-S.

3) Pray to the Greek god of bureaucracy.

Stuart O. Bronstein

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Feb 5, 2024, 2:48:49 PMFeb 5
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"Adam H. Kerman" <a...@chinet.com> wrote:
> Stuart O. Bronstein <spam...@lexregia.com> wrote:
>
>>I was consulted by a member of an LLC that is taxed as a partnership.
>>Form 2022 they mistakenly filed Form 1120-S rather than Form 1065.
>>They now want to fix it.
>
>>Do they file a 1065-X? Or do they file a 1065 with a letter
>>explaining their mistake? It's not really an amended 1065, but it is
>>supposed to replace the 1120-S.
>
>>Thanks for any thoughts.
>
> You're not going to like the answer. I asked a retired accountant.
> She's quite cynical that IRS will have any interest in being helpful.
>
> There is no amended return to file, not for the 1120-S. Can't file
> 1065-X given that no 1065 was filed to begin with.
>
> 1) Write a lengthy letter of explanation. Beg IRS to ignore the 1120-S
> filed in error. They won't, but put it in the letter anyway.
>
> 2) As 1065 was the required form, file this. There is no choice.
> Attach the letter withdrawing the 1120-S.
>
> 3) Pray to the Greek god of bureaucracy.

Thanks Adam. That makes sense. The other thing I'm suggesting to them
is (since they're planning on switching to being taxed as an S-
corporation at some point) to ask for retroactive approval of S-
corporation status. And to talk to a tax professional to help determine
which is best, and then to present their case to the IRS.

--
Stu
http://DownToEarthLawyer.com
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