- 7 - to assume that the use of an EIN by the corporation on Forms 1120S means that it actually was assigned an EIN by the Internal Revenue Service. Treatment as an S corporation is contingent on election with consent of the shareholders. Sec. 1362; sec. 1.1362-6, Income Tax Regs. To be effective, Form 2553 must be filed with the Service Center designated in the instructions applicable to Form 2553. Sec. 1.1362-6(a)(2), Income Tax Regs.; see Combs v. Commissioner, T.C. Memo. 1989-206, affd. without published opinion 907 F.2d 151 (6th Cir. 1990). Therefore, filing requires delivery to the Service Center. Barber v. Commissioner, T.C. Memo. 1999-260; Leather v. Commissioner, T.C. Memo. 1991-534. Proof of mailing raises a rebuttable presumption of delivery that will be sufficient in the absence of evidence of nondelivery. See Anderson v. United States, 966 F.2d 487 (9th Cir. 1992); Estate of Wood v. Commissioner, 92 T.C. 793, 798-799 (1989), affd. 909 F.2d 1155 (8th Cir. 1990). Here, respondent produced evidence of nondelivery in the form of a Certification of Lack of Record with respect to Form 2553 for Cactus Quail or for EIN 86-0819375. Petitioners, on the other hand, have produced no direct evidence that they mailed the form. They have failed to describe any details of the actual deposit of the Form 2553 in the United States mail. See Leather v. Comissioner, supra. In view of the evidence of nonreceipt offered byPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: May 25, 2011