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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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