- 8 - addresses in an affidavit.3 Summary judgment cannot be granted on the basis of allegations of fact in respondent's brief, even if petitioner were to fail to controvert the allegations. See Smith v. Commissioner, T.C. Memo. 1983-706. With respect to the Form 2553, there also remains a question of fact as to whether the Form 2553 was a representation made by petitioner. Respondent concedes that the apparent signatures of petitioner were not affixed by him. On the other hand, respondent's handwriting expert did not examine the apparent signature of Mary Ann Johnson, and respondent makes no concession with respect to that signature. In any event, respondent argues that petitioner authorized the signatures or otherwise allowed the Form 2553 to be filed and subsequently supplemented, and that such acts of authorization or allowance constitute a representation for purposes of the duty of consistency. Petitioner has filed an affidavit stating that the signatures that were apparently his on the Form 2553 were not authorized by him. We find that petitioner's affidavit is sufficient to raise 3 In his second affidavit, petitioner asserts that his joint tax returns for the years in issue were prepared by accountants and presented to him for signature. Petitioner also asserts that the corporate returns for JPS were prepared by accountants and presented to him for signature, and that decisions to use Form 1120S rather than 1120 were made by accountants. He further asserts that he did not know the difference between a C corporation and an S corporation prior to or during the years in issue.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011