Treatment of a corporation as a pass-through entity for federal income tax purposes can sometimes be achieved through an S corporation election under section 1362(a) of the Internal Revenue Code (“Code”), with the effect, among others, that the shareholders of the corporation may be permitted to claim its losses on their individual tax returns. However, an irregularity in corporate form may invalidate an election and give rise to adverse consequences that become apparent only in the context of a tax audit years after the election was attempted. Deckard v. Commissioner (155 T.C. No. 8 (2020)) illustrates this point and highlights the need for careful attention to the details of stock ownership, especially where classification as an S corporation is desired as a result of circumstances not anticipated at the time the corporation was formed.

Facts in ‘Deckard’

Clinton Deckard caused Waterfront Fashion Week, Inc. (“Waterfront”) to be organized in May 2012 to produce an event in Louisville, Kentucky, known as Waterfront Fashion Week. Waterfront was formed as a nonstock and nonprofit corporation under the Kentucky Nonprofit Corporations Act (the “Act”), rather than as an ordinary business corporation, because it was thought that a nonprofit entity to which contributions may be deductible for income tax purposes would more readily attract funding. However, Waterfront never took the critical step of applying to the IRS for recognition of its tax-exempt status, with the result that it was considered a taxable corporation, contributions to which were not deductible, for federal income tax purposes.