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EMFI on its corporate return, and petitioners have amended their
tax return in an effort to consistently reflect the assertion
that EMFI did not elect to treat its distributions as taxable to
the extent of earnings and profits.
Of particular importance in this case is EMFI's
unwillingness to amend its return to include an election. In
prior cases in which we have applied the doctrine of substantial
compliance to except taxpayers from literal compliance, taxpayers
have argued that they intended to make the required election.
Consistent with the assertion of substantial compliance,
taxpayers have in many cases amended their returns to include a
consistent election statement.8 The Commissioner has also
8For examples of cases in which substantial compliance was
found, see, e.g., United States v. Van Keppel, 321 F.2d 717 (10th
Cir. 1963) (late filing of required agreement allowed); Taylor v.
Commissioner, 67 T.C. 1071 (1977) (taxpayer offered to amend to
comply with any election requirements); Hewlett-Packard Co. v.
Commissioner, 67 T.C. 736 (1977) (late filing required); Columbia
Iron & Metal Co. v. Commissioner, supra (required written
declaration filed subsequent to filing return); Cary v.
Commissioner, 41 T.C. 214 (1963) (election filed upon learning of
defect).
For examples of cases in which substantial compliance has
been denied, see, e.g., Fisher Indus., Inc. v. Commissioner, 843
F.2d 224 (6th Cir. 1988), affg. 87 T.C. 116 (1986) (taxpayer
filed Form 970 late); Kerry v. Commissioner, 89 T.C. 327 (1987)
(taxpayer amended corporate returns to include sec. 48(d)
election); Estate of Gunland v. Commissioner, 88 T.C. 1453 (1987)
(taxpayer attached required agreement to amended return); Young
v. Commissioner, 83 T.C. 831 (1984) (election attached to amended
return), affd. 783 F.2d 1201 (5th Cir. 1986); Thorrez v.
Commissioner, 31 T.C. 655 (1958), affd. 272 F.2d 945 (6th Cir.
1959) (taxpayer amended return prior to notice of deficiency).
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