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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.
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