Martin and Suzanne Higbee - Page 6




                                        - 5 -                                         
          Amended U.S. Individual Income Tax Return, filed by petitioners             
          that are intended to cancel "the previously filed Schedule E's              
          and have substituted Schedule C's".  The amended returns were               
          received by the Service Center on December 11, 2000.  On page 2,            
          Part II of the returns, Explanation of Changes to Income,                   
          Deductions, and Credits, petitioners state that the returns are             
          being "filed to remove the K-1 from Cactus Quail Enterprises,               
          Inc. per letters from the IRS disallowing the S-corporation                 
          election."  The explanation further states that the State                   
          corporation commission reports for the corporation were not filed           
          for 1997, 1998, and 1999, and that the "corporation was no longer           
          valid after 12/31/96."                                                      
                                     Discussion                                       
               Petitioners' argument on brief is that they did business as            
          a proprietorship for the years at issue but, if they were doing             
          business as a corporate entity, then such entity was an S                   
          corporation under section 1361.                                             
               Respondent's position is that petitioners failed to make an            
          election under section 1362.  Respondent further argues that                
          petitioners have not shown that they were doing business as a               
          proprietorship in 1997 and 1998, but that even if they were, they           
          have not shown that they actually incurred the expenses they now            
          claim are deductible on Schedules C, Profit or Loss From                    
          Business, of their personal returns.                                        






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