Martin and Suzanne Higbee - Page 8




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          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 by                    






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