Xavier J.R. and Sulochana D. Avula - Page 6




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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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