George Johnson, Jr. - Page 8

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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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