dissenting: Because I believe that the presumption of delivery upon proof of first class mailing cannot be used to supply the delivery requirement of section 7502, I dissent.
Section 7502(a)(1) states that: “If any return * * * is * * * delivered by United States mail to the agency * * * .” (Emphasis added.) Likewise, section 301.7502-1(d)(1) provides that: “Section 7502 is not applicable unless the document is delivered * * * .” (Emphasis added.) The Senate Committee report insofar as pertinent, emphasizes the Congressional intent that actual delivery is an essential requirement of section 7502. “The section [section 7502] applies in the case where documents * * * are mailed to the proper office within the time prescribed by the Internal Revenue laws, as indicated by the postmark on the envelope, and are received by that office after such time has expired. In such case, the document is deemed timely filed.” S. Rept. 1622, 83d Cong., 2d Sess. 615 (1954). The majority rewrites both the statute and the regulations by effectively inserting after the word “delivered” the words “or presumed to be delivered.”
In two cases we have expressly held that actual delivery to the Internal Revenue Service is required for the application of section 7502. Benrey v. Commissioner, T.C. Memo. 1986-135; Foerster v. Commissioner, T.C. Memo. 1981-32. In the only appellate court decisions which have considered this issue, the Courts of Appeal for the Second, Sixth, and Ninth Circuits have reached the same conclusion. Miller v. Commissioner, 784 F.2d 728 (6th Cir. 1986); Deutsch v. Commissioner, 599 F.2d 44 (2d Cir. 1979); Bloch v. Commissioner, 254 F.2d 277 (9th Cir. 1958). The majority distinguishes both Miller and Deutsch because in those two cases no postmark was proven and the evidence showed nondelivery or nonreceipt by respondent. However, those factual differences do not affect the clear holdings by the Courts of Appeal that the Court-made presumption of delivery from proof of mailing cannot be utilized to show timely delivery for purposes of section 7502. The Second Circuit in Deutsch stated flatly: “Further, the legislative history indicates that section 7502 is only applicable if the petition is actually delivered * * * delivery for these purposes is synonymous with receipt of the item. See 26 C.F.C. sec. 301.7502-1(d) (1978).” Deutsch v. Commissioner, supra at 46. There is simply no support for the majority’s position in this regard.
The majority also misapplies the presumption of delivery cases. Under that presumption, the date of delivery does not relate back to the date of mailing. Rather, those cases hold that a document is deemed to be timely filed upon “proof of regular mailing, in time to reach the collector, in due course of mail, within the statutory filing period * * * .” Crude Oil Corp. of America v. Commissioner, 161 F.2d 809, 810 (10th Cir. 1947). In other words, not only is a taxpayer required to prove mailing, but in appropriate cases he is required to show that the document would have reached the Internal Revenue Service on or before the due date. Wells Marine, Inc. v. Renegotiation Board, 54 T.C. 1189 (1970). In this case, the majority has not made a finding that petitioner’s return would have made its way from eastern Minnesota to respondent’s service center in Odgen, Utah, in two business days, an unlikely event. The majority conveniently eliminates this issue by attaching the timing rule of section 7502(a)(1) to the pre-section 7502 presumption, contrary to the statute. See, e.g., Walden v. Commissioner, 90 T.C. 947, 952 (1988), where we said “if [taxpayers’] theory that the mere mailing of a return constitutes delivery to the IRS were correct, the need for section 7502(c) would be obviated.”
Finally, there is at least a serious question as to whether the presumption of delivery has not been rebutted in this case by facts found by the majority. Petitioner or his representative was informed both by representatives of the Internal Revenue Service and of the Minnesota State Tax Commissioner that neither the Federal Estate Tax Return nor the State Estate Tax Return has been received. While more definitive proof of nondelivery would have been preferable, the presumption itself probably vanished. See, e.g., Llorente v. Commissioner, 74 T.C. 260, 277 (1980), Tannenwald, J., concurring. As we said in Walden v. Commissioner, supra, the presumption of delivery is rebut-table and does not override proof of no delivery. Walden v. Commissioner, supra at 951-952.
Accordingly, I dissent.
Nims, Parker, Kórner and Gerber, JJ., agree with this dissent.