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their original failure to make the elections was based on a
material mistake of fact, and their untimely elections should be
recognized. Petitioners rely on Meyer's Estate v. Commissioner,
200 F.2d 592 (5th Cir. 1952), revg. 15 T.C. 850 (1950), and Plumb
v. Commissioner, 97 T.C. 632 (1991).11
Plumb v. Commissioner, supra, is inapposite. In Plumb, this
Court held that a taxpayer who attempted to make an election that
was not available under the law had made no election and should
be treated as such. Petitioners originally chose between two
legally available alternatives. Thus, Plumb does not provide a
basis for disregarding their original decision not to make
elections under ERTA section 508(c). Cf. Miller v, Commissioner,
99 F.3d 1042 (11th Cir. 1996); Branum v. Commissioner, 17 F.3d
805, 809 (5th Cir. 1994).
In Estate of Meyer v. Commissioner, 15 T.C. 850 (1950),
revd. 200 F.2d 592 (5th Cir. 1952), the parties stipulated that
11 Taxpayers have been allowed to make an election that
did not literally comply with certain procedural requirements
governing the time provided for making the election. See, e.g.,
Taylor v. Commissioner, 67 T.C. 1071 (1977); Dougherty v.
Commissioner, 60 T.C. 917 (1973). Such decisions generally
conclude that the elections were timely, relying on (1)
substantial compliance with the procedural requirements within
the time limit for making the election; (2) an expression of
intent to make the election within the time limit; or, at least,
(3) a lack of an election against or conduct that is inconsistent
with the position the taxpayer ultimately did adopt. See, e.g.,
American Air Filter Co. v. Commissioner, 81 T.C. 709 (1983);
Taylor v. Commissioner, supra; Dougherty v. Commissioner, supra.
Petitioners do not assert that their elections were timely under
this line of cases.
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