James L. and Leta A. Thurman - Page 20

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          required that a consistent election be filed in order to meet the           
          requirements of substantial compliance.  In Priv. Ltr. Rul. 90-             
          43-010 (Oct. 26, 1990), on facts very similar to the instant                
          case, the Commissioner ruled that the taxpayer substantially                
          complied "Provided that no later than 30 days after the date of             
          this letter, [the electing party] files a section 1368(e)(3)(A)             
          election".9  Here, instead of causing EMFI to file a late                   
          election in an effort to substantially comply, petitioners                  
          amended their 1992 Form 1040 to report no taxable distributions             
          were received.10   We, therefore, find that the conflicting                 

               8(...continued)                                                        
               But cf. Bond v. Commissioner, 100 T.C. 32 (1993)                       
          (substantial compliance found on information within the                     
          originally filed return); Hoffman v. Commissioner, 47 T.C. 218              
          (1966), affd. 391 F.2d 930 (5th Cir. 1968) (revocation of S                 
          corporation election allowed without amended or late filing).               
               9Although private letter rulings are not precedent, sec.               
          6110(j)(3), they "do reveal the interpretation put upon the                 
          statute by the agency charged with the responsibility of                    
          administering the revenue laws."  Hanover Bank  v. Commissioner,            
          369 U.S. 672, 686 (1962); see Rowan Cos. v. United States, 452              
          U.S. 247, 259 (1981); Estate of Cristofani v. Commissioner, 97              
          T.C. 74, 84 n.5 (1991).                                                     
               10Respondent argues that if EMFI is treated as not having              
          made the election, then taxpayers in the future will be able to             
          whipsaw the Government.  Respondent argues that taxpayers may               
          substantially comply except for filing the election form and,               
          later, depending on whether it is in the taxpayer's interest,               
          effectively revoke the election by amending the shareholder's               
          returns to request a refund.  However, by requiring EMFI to file            
          an election, our decision in this case only reinforces the                  
          Commissioner's regulatory requirement that an election statement            
          be filed.  Moreover, the Commissioner's regulations provide for             
          an election to be made on a "timely filed original or amended               
                                                             (continued...)           




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