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a genuine issue of material fact as to whether petitioner
authorized the signatures or allowed the Form 2553 to be filed.
Because there remain genuine issues of material fact as to
whether petitioner made representations to respondent with
respect to the S corporation status of JPS, we will deny
respondent's cross-motion. We next turn to petitioner's motion.
Petitioner's Motion
Petitioner's motion asks us to hold that JPS was not an S
corporation during the years in issue because no valid S
corporation election was made. Each party argues that the other
has the burden of proof with respect to the validity of JPS's
election of S corporation status. However, the allocation of the
burden of proof depends on why the issue of JPS's status as an S
corporation is being raised. Insofar as respondent's deficiency
determination is premised upon JPS's S corporation status,
petitioner has the burden of overcoming the presumption of
correctness of the notice of deficiency. Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933); Kale v. Commissioner, T.C.
Memo. 1996-197. To meet that burden, petitioner must
affirmatively demonstrate the invalidity of the S corporation
election by JPS. Poulter v. Commissioner, T.C. Memo. 1967-220,
affd. per curiam 397 F.2d 415 (4th Cir. 1968). Conversely, if
JPS's S corporation status is a necessary component of an issue
on which respondent bears the burden of proof, such as fraud,
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