T.C. Summary Opinion 2004-85
UNITED STATES TAX COURT
CAROLYN ANN HARRIS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2033-03S. Filed June 24, 2004.
Carolyn Ann Harris, pro se.
James J. Posedel, for respondent.
GOLDBERG, Special Trial Judge: This case was heard pursuant
to the provisions of section 7463 of the Internal Revenue Code in
effect at the time the petition was filed. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority. Unless otherwise indicated,
subsequent section references are to the Internal Revenue Code in
effect for the year in issue.
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Respondent determined a deficiency in petitioner’s Federal
income tax of $1,664, and an addition to tax under section
6651(a)(1) of $416, for the taxable year 1997.
The dispute in this case centers around whether petitioner
filed in April 1998 a Federal income tax return for taxable year
1997. If the Court finds that petitioner did file a return at
that time, the parties agree that the period of limitations has
expired and that respondent may not assess any tax with respect
to taxable year 1997. If the Court finds that petitioner did not
file a return at that time, the only issue remaining for
decision, after concessions by both parties, is whether
petitioner is liable for the addition to tax under section
6651(a)(1) for failure to file a timely return.
Some of the facts have been stipulated and are so found.
The stipulation of facts and the supplemental stipulation of
facts, and the exhibits attached thereto, are incorporated herein
by this reference. Petitioner resided in San Diego, California,
on the date the petition was filed in this case.
On April 15, 1998, petitioner mailed to respondent, via
first class mail, a Federal income tax return for taxable year
1997. Petitioner mailed the return in an envelope on which she
had handwritten the address and affixed first-class postage.
Petitioner’s daughter, Natalie Genous, had driven to petitioner’s
house to pick up petitioner; they then picked up Ms. Genous’s
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daughter from school and proceeded to the post office, where they
waited in a long line and mailed the return at the drive-through
mailbox. The return, signed by petitioner and dated April 13,
1998, reflected an overpayment of $1,182 as a result of
petitioner’s claim of an earned income credit in that amount.
Respondent’s records indicate that on June 7 and August 2,
1999, he mailed petitioner taxpayer delinquency notices with
respect to taxable year 1997. Although petitioner had a copy of
the 1997 return that she mailed, she did not have copies of
certain supporting documents that were required to be filed with
the return; i.e., Forms W-2, Wage and Tax Statement, and Forms W-
2G, Certain Gambling Winnings. At or around the time petitioner
received the delinquency notices, she requested copies of these
supporting documents from respondent. Petitioner received these
documents in the form of a computer report which was generated on
August 27, 1999. During 1999, petitioner underwent surgery for a
tumor and she was involved in an automobile accident. Petitioner
did not resubmit a copy of her return to the Internal Revenue
Service (IRS) immediately after learning that the IRS did not
have the original because she had difficulty finding the copy,
she was undergoing the medical treatment, and an IRS employee had
told her that she could have more time to submit a copy.
By letter dated February 1, 2000, the IRS notified
petitioner that it had no record of her filing a return for 1997.
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Respondent’s records indicate that respondent had prepared a
substitute return on January 20, 2000, and the February 1, 2000,
letter set forth the IRS’s initial calculation of petitioner’s
tax liability for 1997. Petitioner subsequently personally
delivered a copy of her return to IRS Taxpayer Service/San Diego
on February 29, 2000. The copy of the return was stamped
received at the Fresno Service Center on April 19, 2000. The
words “duplicate copy” appear on the return; the record is silent
as to who made this notation. Respondent’s records indicate that
the IRS treated this return as an amended return. Petitioner
received a Form 4549, Income Tax Examination Changes, dated
January 15, 2002, which reflected a proposed deficiency of $1,664
and a proposed section 6651(a)(1) addition to tax of $416. The
notice of deficiency underlying this case, issued on November 13,
2002, reflected the same amounts for the deficiency and the
addition to tax as did the Form 4549.
Subject to exceptions not applicable here, taxes imposed by
the Internal Revenue Code must be assessed within 3 years after a
return is filed. Sec. 6501(a). Thus, if a notice of deficiency
is issued after the 3-year period of limitations has expired, the
assessment and collection of the deficiency determined therein is
statutorily barred. Id.
Generally, a document is considered filed with the IRS when
that agency receives it. Jones v. United States, 226 F.2d 24, 28
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(9th Cir. 1955); Basham v. Commissioner, T.C. Memo. 1999-123.
However, if a return is sent to the IRS via registered mail, the
registration is prima facie evidence that the document was
delivered to the addressee. Sec. 7502(c)(1)(A). Furthermore,
except in situations where this Court is constrained to do
otherwise pursuant to Golsen v. Commissioner, 54 T.C. 742 (1970),
affd. 445 F.2d 985 (10th Cir. 1971),1 we consider proof that a
document was properly mailed and postmarked to give rise to a
presumption that the document was delivered to, and received by,
the person to whom it was addressed--even if the document was not
sent via registered mail. Lewis v. United States, 144 F.3d 1220
(9th Cir. 1998); Anderson v. United States, 966 F.2d 487 (9th
Cir. 1992); Estate of Wood v. Commissioner, 92 T.C. 793, 798
(1989), affd. 909 F.2d 1155 (8th Cir. 1990); Basham v.
Commissioner, supra. The Court of Appeals for the Ninth Circuit
held in Anderson v. United States, supra, that extrinsic evidence
may be used in proving that a Federal income tax return was
timely mailed. That court stated in a subsequent opinion that
“Anderson stands for the broad rule that if a taxpayer furnishes
credible evidence of the date her letter to the Service was
1
This Court generally applies the law in a manner consistent
with the holdings of the Court of Appeals to which an appeal of
its decision lies, Golsen v. Commissioner, 54 T.C. 742 (1970),
affd. 445 F.2d 985 (10th Cir. 1971), even in cases subject to
sec. 7463(b). But for the provisions of sec. 7463(b), the
decision in this case would be appealable to the U.S. Court of
Appeals for the Ninth Circuit. Sec. 7482(b)(1)(A).
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postmarked, that date is the date that controls.” Lewis v.
United States, supra at 1223. In Lewis, the court found that “a
taxpayer with an unblemished reputation for paying taxes [who]
produces circumstantial evidence supporting his word” has
provided sufficient evidence under Anderson, even in the absence
of “the taxpayer’s sworn testimony that she had seen a postal
clerk affix the postmark on the appropriate date.” Id. at 1222-
1223.
As discussed above, we have found that petitioner mailed her
1997 return on April 15, 1998. We base this finding on the
credible testimony of petitioner and her daughter, Ms. Genous.
There are no inconsistencies in petitioner’s version of events,
and respondent did not present any evidence directly calling into
question the testimony of petitioner or Ms. Genous. On the basis
of this testimony, therefore, we conclude that the return was
mailed in a properly addressed envelope with sufficient postage,
and that the return bore a postmark of April 15, 1998. See id.
at 1223. Because we find that the return was properly and timely
mailed, a presumption arises that the return was delivered to the
IRS within a reasonable amount of time thereafter. See id.;
Anderson v. United States, supra; Estate of Wood v. Commissioner,
supra; Basham v. Commissioner, supra. Respondent did not present
sufficient evidence to rebut this presumption. The only evidence
in the record supporting respondent’s position is a “Certificate
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of Assessments, Payments, and Other Specified Matters”, provided
by respondent, which fails to reflect the filing of a return by
petitioner in April 1998. We do not find this document, standing
alone, to be sufficient to rebut the presumption of delivery in
the presence of unchallenged evidence of mailing. Consequently,
we find that respondent received petitioner’s return in April
1998, and that the return was filed at that time. Because
petitioner filed her return in April 1998, and the notice of
deficiency was issued in November 2002, the assessment and
collection of the deficiency determined therein is statutorily
barred. See sec. 6501(a).
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for petitioner.