- 9 -
185, 193-194 (1884); Smith v. Commissioner, T.C. Memo. 1994-270,
affd. without published opinion 81 F.3d 170 (9th Cir 1996).
Whether the Commissioner is able to rebut such presumption of
receipt is a credibility determination. Smith v. Commissioner,
supra (citing Anderson v. United States, supra at 492). We need
not make such a credibility determination here.4
The Court of Appeals for the Sixth Circuit, to which this
case is appealable, has consistently rejected "testimony or other
evidence as proof of the actual date of mailing." Miller v.
United States, 784 F.2d 728, 731 (6th Cir. 1986)(quoting Deutsch
v. Commissioner, 599 F.2d 44, 46 (2d Cir. 1979)). The Court of
Appeals for the Sixth Circuit "[concluded] that the only
exceptions to the physical delivery rule available to taxpayers
are the two set out in section 7502". Miller v. United States,
supra at 731.
This issue was revisited in Surowka v. United States, 909
F.2d 148, 150 (6th Cir. 1990), where the Court of Appeals stated:
4 Even if we were required to make such a determination,
we note that petitioner's case is distinguishable from those
which allowed extrinsic evidence as proof of the date of mailing.
In Estate of Wood v. Commissioner, 92 T.C. 793 (1989), affd. 909
F.2d 1155 (8th Cir. 1990), for example, the taxpayer provided
testimony from the local postmaster as to the date she hand-
postmarked the item. Petitioner does not provide such evidence
here. In rebuttal, however, respondent provided credible
testimony from an employee regarding standard IRS procedures, and
a nationwide search on respondent's computer system determined no
return was received from petitioner prior to July 1, 1992.
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