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date the return was filed if the postmark date is within the
period for filing the return and the return is delivered after
the date it was required to be filed. If no evidence establishes
the postmark date of a return, the date the return was delivered
is the date the return was filed. Here petitioners provided no
evidence of a U.S. postmark. Consequently, section 7502 is not
applicable.
It has been held, however, that section 7502 does not
displace the common law presumption of delivery (the mailbox
rule). Anderson v. United States, 966 F.2d 487, 491 (9th Cir.
1992); cf. Konst v. Florida E. Coast Ry., 71 F.3d 850, 854 (11th
Cir. 1996). Under the common law mailbox rule, the proper
mailing of a return gives rise to a rebuttable presumption of
delivery. Anderson v. United States, supra at 491. When a
taxpayer is unable to produce documentary evidence that a return
was mailed, we have allowed indirect, credible evidence to prove
the date of postmark. See Estate of Wood v. Commissioner, 92
T.C. 793, 798 (1989) (accepting testimony of a postmistress who
affixed the postmark to the envelope containing the return),
affd. 909 F.2d 1155 (8th Cir. 1990). By contrast, petitioners in
this case have not produced credible evidence that their returns
were timely mailed and postmarked. We are not persuaded by
petitioner's self-serving testimony. We think it is significant
that petitioner failed to inquire about the refunds claimed on
the returns. It seems improbable to us that if petitioners had
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