I.C. Hemmings and Sue B. Hemmings, et al. - Page 26

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          the taxpayers relied on an understated corporate earned surplus             
          figure, as shown by an audit of certified public accountants, in            
          making an election to liquidate under section 112(b)(7) of the              
          Internal Revenue Code of 1939, and the actual earned surplus                
          figure was more than 10 times the figure relied on.  Under these            
          circumstances, the Court of Appeals for the Fifth Circuit held              
          that the election could be withdrawn on the ground that it was              
          based on a material mistake of fact.  Meyer's Estate v.                     
          Commissioner, 200 F.2d at 596-597.                                          
               While this Court has not adopted the reasoning of Meyer's              
          Estate v. Commissioner, 200 F.2d at 592 (see Johnson v.                     
          Commissioner, T.C. Memo. 1991-645, affd. without published                  
          opinion 989 F.2d 484 (1st Cir. 1993)), an appeal in this case               
          lies to the Court of Appeals for the Eleventh Circuit in which              
          Meyer's Estate is precedent.12  Nonetheless, if petitioners are             
          to be allowed to make elections at this time in reliance upon               
          Meyer's Estate, they must establish that their original elections           
          were based upon a material mistake of fact and not a mistake of             
          law.  Rule 142(a); Bankers & Farmers Life Ins. Co. v. United                
          States, 643 F.2d 234 (5th Cir. 1981).  It is one thing to allege            
          simply that there was a mistake in regarding the Conti losses as            


          12   As expressed in Bonner v. City of Prichard, 661 F.2d                   
          1206, 1209 (11th Cir. 1981), the Court of Appeals for the                   
          Eleventh Circuit follows precedent of those cases decided by the            
          Court of Appeals for the Fifth Circuit prior to September 30,               
          1981.                                                                       




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