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Elliot Pisem and David E. Kahen Elliot Pisem and David E. Kahen

Treatment of a corporation as a pass-through entity for federal income tax purposes can sometimes be achieved through an S corporation election under section 1362(a) of the Internal Revenue Code (“Code”), with the effect, among others, that the shareholders of the corporation may be permitted to claim its losses on their individual tax returns. However, an irregularity in corporate form may invalidate an election and give rise to adverse consequences that become apparent only in the context of a tax audit years after the election was attempted. Deckard v. Commissioner (155 T.C. No. 8 (2020)) illustrates this point and highlights the need for careful attention to the details of stock ownership, especially where classification as an S corporation is desired as a result of circumstances not anticipated at the time the corporation was formed.

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