ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
LARAMORE, Senior Judge:
This is an action to recover Federal corporate income taxes paid by plaintiff, under protest, for the taxable year ended March 31, 1970. The sole question presented is whether the taxpayer's prior election to be treated as a "small business corporation" under Subchapter S of the Internal Revenue Code of 1954,
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