- 14 - election that was attached to EMFI's Form 1120S for the fiscal year ended October 31, 1993. Instead, respondent's determination disregards the lack of a filed election, asserts that EMFI substantially complied with the election requirements, and, therefore, asserts that EMFI has in fact made the election under section 1368(e)(3). This is the first instance we are aware of in which we have been asked to find, under the doctrine of substantial compliance, that a taxpayer is bound by an election where no election statement was filed, and the taxpayer refuses to file such election.6 Respondent argues that it would be unfair to apply the doctrine of substantial compliance so that only taxpayers may use it. We need not decide the issue of whether the doctrine of substantial compliance may never be used to force a taxpayer to be bound by an election where the taxpayer substantially complied with the requirements to make the election. Instead, for several reasons, we do not believe that the facts of this case warrant an application of the doctrine of substantial compliance to require 6In Brody v. Commissioner, T.C. Memo. 1975-47, the taxpayer argued that S corporation status may not be elected by filing an S corporation return instead of the form prescribed by the regulations. Relying on the fact that the returns filed were S corporation returns, the Commissioner determined that the corporation had elected to be taxed under subchapter S. In sustaining the Commissioner's determination, we relied almost exclusively on the taxpayers' failure to meet their burden of proof. See Rockwell Inn, Ltd. v. Commissioner, T.C. Memo. 1993- 158.Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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