George Johnson, Jr. - Page 9

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            a genuine issue of material fact as to whether petitioner                                 
            authorized the signatures or allowed the Form 2553 to be filed.                           
                  Because there remain genuine issues of material fact as to                          
            whether petitioner made representations to respondent with                                
            respect to the S corporation status of JPS, we will deny                                  
            respondent's cross-motion.  We next turn to petitioner's motion.                          
            Petitioner's Motion                                                                       
                  Petitioner's motion asks us to hold that JPS was not an S                           
            corporation during the years in issue because no valid S                                  
            corporation election was made.  Each party argues that the other                          
            has the burden of proof with respect to the validity of JPS's                             
            election of S corporation status.  However, the allocation of the                         
            burden of proof depends on why the issue of JPS's status as an S                          
            corporation is being raised.  Insofar as respondent's deficiency                          
            determination is premised upon JPS's S corporation status,                                
            petitioner has the burden of overcoming the presumption of                                
            correctness of the notice of deficiency.  Rule 142(a); Welch v.                           
            Helvering, 290 U.S. 111, 115 (1933); Kale v. Commissioner, T.C.                           
            Memo. 1996-197.  To meet that burden, petitioner must                                     
            affirmatively demonstrate the invalidity of the S corporation                             
            election by JPS.  Poulter v. Commissioner, T.C. Memo. 1967-220,                           
            affd. per curiam 397 F.2d 415 (4th Cir. 1968).  Conversely, if                            
            JPS's S corporation status is a necessary component of an issue                           
            on which respondent bears the burden of proof, such as fraud,                             





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