James L. and Leta A. Thurman - Page 14

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          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.                                                                        




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