Lloyd L. Barber, Jr. and Janet M. Barber - Page 5




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               Petitioners failed to present any corroborating evidence as to         
          the purported mailing of Form 2553.  See Anderson v. United States,         
          966 F.2d 487, 491 (9th Cir. 1992) (holding that under the common-           
          law mailbox rule, a rebuttable presumption of delivery arises where         
          there is evidence of timely mailing).  As a paralegal who owned a           
          business that prepared legal documents, petitioner should have              
          understood the significance of complying with the requirements for          
          Legal Search's making an S corporation election.  He should have            
          taken steps to verify that the election was properly made.  He              
          failed to do so.                                                            
              At trial, respondent presented credible evidence that the Form         
          2553 was not delivered.  Consequently, we hold that petitioners             
          have failed to satisfy their burden and thus may not deduct the             
          claimed 1995 loss arising from Legal Search.                                
               On their 1994 Federal income tax return, petitioners reported          
          a $25,565 loss arising from Legal Search's activities and received          
          a $1,783 refund.  Petitioners alternatively maintain that because           
          the IRS did not challenge the loss reflected on their 1994 tax              
          return, pursuant to the doctrine of equitable estoppel, the IRS             
          cannot now argue that for tax year 1995, Legal Search is not an S           
          corporation.  We disagree.                                                  










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