- 19 -
particular circumstances of this case, petitioner is not entitled
to a summary ruling, based on the incompleteness of the Form
2553, that JPS failed to make a valid S corporation election.
Fraud
As noted earlier, insofar as JPS's S corporation status is a
necessary component of an issue on which respondent bears the
burden of proof, such as fraud, respondent would have the burden
of demonstrating the validity of JPS's S corporation election.
Respondent would be unable to carry this burden, because he would
be unable to show that the Form 2553 was timely, given the
stipulations: (1) That the Form 2553 was stamped "Received" on
November 26, 1976 (2 days after the last day for filing the
Form), and (2) that it is unknown whether the Form 2553 was
mailed, transported by private courier, or hand delivered.
(Thus, respondent would not be able to demonstrate timely filing
on the basis of section 7502.) However, respondent need not rely
on JPS's S corporation status to prove fraud in this case,
because he has determined other underpayments not related to S
corporation income from JPS, and proof that some part of any of
these other underpayments was due to fraud would suffice to
establish the fraud penalty with respect to the entire
9(...continued)
second submission much more complete than the first, but in that
case the first submission did not contain any signatures
representing shareholder consents and was therefore invalid.
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