- 43 - as to harm the Commissioner. Because the duty of consistency is an affirmative defense, respondent bears the burden of proving that it applies. Rule 142(a). From 1988 until approximately 1 month before trial, petitioner consistently represented to respondent that BAC was an S corporation. Petitioner initially caused Form 2553, Election by a Small Business Corporation, which indicated that Mrs. Baldwin was BAC’s sole shareholder and that she had the authority to elect S corporation status for BAC, to be filed on behalf of BAC. Petitioner also caused BAC to file Forms 1120S, U.S. Income Tax Return for an S Corporation, and deducted BAC’s passthrough losses on his Forms 1040, U.S. Individual Income Tax Return, for the years at issue. Petitioner did not inform respondent during the audit that the validity of BAC’s S corporation election was an issue. Petitioner also represented, under oath, in formal discovery proceedings in this case that BAC was an S corporation. Petitioner now seeks to repudiate BAC’s S corporation status, in an effort to deprive this Court of jurisdiction over the BAC issues and respondent of the opportunity to obtain a ruling on the BAC issues raised in this case. Petitioner argues that the duty of consistency does not apply because respondent has failed to prove that respondent reasonably relied upon BAC’s S election when issuing the noticesPage: Previous 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Next
Last modified: May 25, 2011