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attempted to make an election to be treated as an S corporation.
Nonetheless, petitioners argue that IAMCM should now be permitted
to make an S corporation election and that that election should be
retroactive to 1993, 1994, and 1995. Respondent disagrees.
A small business corporation generally may elect to be an S
corporation. See sec. 1362(a). Assuming arguendo, without
deciding, that IAMCM qualifies as a small business corporation as
defined in section 1361(b), it generally may make an election
under section 1362(a) to be an S corporation for any taxable year
at any time during the preceding taxable year or at any time
during the taxable year and on or before the 15th day of the third
month of the taxable year.3 See sec. 1362(b)(1).
On the record before us, we find that IAMCM did not make a
timely and valid election to be treated as an S corporation for
any of the years 1993, 1994, and 1995 (or for either of the
remaining years at issue, 1991 and 1992).4 On that record, we
3If a small business corporation makes an election under
sec. 1362(a) for any taxable year and that election is made after
the 15th day of the third month of the taxable year and on or
before the 15th day of the third month of the following taxable
year, such an election shall be treated as made for the following
taxable year. See sec. 1362(b)(3).
4The record is devoid of evidence explaining why IAMCM did
not file Form 2553 with respondent within the time prescribed by
sec. 1362(b). At trial, Mr. Avula testified that, when the agent
informed him in April 1997 about the rules requiring a small
business corporation to file Form 2553 in order for it to be
treated as an S corporation, no such form was filed “for ethical
reasons”.
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