Estate of Bonnie J. Liston Harden, Deceased, David J. Kotler, Executor - Page 9

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          burden of proving its applicability.  Rules 39, 142(a).                     
          Petitioner must make a prima facie case establishing the filing             
          of its return, the expiration of the statutory period, and                  
          receipt or mailing of the notice after the running of the period.           
          Coleman v. Commissioner, 94 T.C. 82, 89 (1990).                             
               The notice of deficiency was mailed to petitioner on March             
          9, 1994.  Petitioner contends that it mailed a return by first-             
          class mail on June 1, 1990, and an amended return on October 28,            
          1990.  Respondent has no record of receiving either of these                
          returns.  According to respondent's records, petitioner's return            
          was received on March 11, 1991, less than 3 years before the                
          mailing of the notice of deficiency.  Consequently, we must                 
          determine whether petitioner has established that it filed either           
          of the alleged prior returns.                                               
               Under the common law mailbox rule, the proper mailing of a             
          return gives rise to a rebuttable presumption of delivery.                  
          Anderson v. Commissioner, 966 F.2d 487, 491 (9th Cir. 1992);                
          Smith v. Commissioner, T.C. Memo. 1994-270, affd. without                   
          published opinion 81 F.3d 170 (9th Cir. 1996).  Petitioner                  
          contends that, pursuant to this rule, it has established that the           
          prior returns were delivered.  David and Harvey testified that              
          they properly mailed the returns by handing an appropriately                
          addressed envelope to a post office clerk.  Petitioner contends             







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