- 26 - 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 Under these circumstances, the Court of Appeals for the Fifth Circuit held that the election could be withdrawn on the ground that it was based on a material mistake of fact.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.Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
Last modified: May 25, 2011