James E. Brown - Page 10

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                         Plaintiffs argue that the recent tax                         
                    court decision in Estate of Wood v.                               
                    Commissioner of Internal Revenue, 92 T.C. 793                     
                    (1989) allows them to prove timely filing of                      
                    their return by extrinsic evidence.  We                           
                    disagree.                                                         
                         First, the tax court in Wood, unlike this                    
                    court in Miller, found the judicially-created                     
                    presumption, that proof of a properly mailed                      
                    document is received, applied in section 7502                     
                    cases.  92 T.C. 798-99.  Further, the tax                         
                    court's holding in Wood that section 7502(c)                      
                    creates a "safe harbor" for taxpayers who file                    
                    by registered or certified mail was rejected                      
                    by this court in Miller, 784 F.2d at 731.                         
                    More importantly, the tax court in Bruder v.                      
                    Commissioner, 57 T.C.M. 873 (1989), held that                     
                    Wood's presumption of delivery did not apply                      
                    to cases appealable to the Sixth Circuit                          
                    because, in Miller, the Sixth Circuit rejected                    
                    the applicability of any such presumption and                     
                    held that section 7502 creates the only                           
                    exceptions to the physical delivery rule.  57                     
                    T.C.M. at 874.                                                    
               The Court of Appeals for the Sixth Circuit again confirmed             
          that the exceptions provided in section 7502 are the only ones to           
          the rule of actual physical delivery.  Carroll v. Commissioner, 71          
          F.3d 1228 (6th Cir. 1995), affg. T.C. Memo. 1994-229.  Here,                
          petitioner has failed  to  show  that  section  7502  applies.              
          Accordingly, petitioner's return is deemed filed on July 1, 1992,           
          thus making the notice of deficiency timely.                                
          Issue 2.  Backpay Award                                                     
               Respondent determined that the $137,918.96 petitioner                  
          received in 1990 as partial settlement of the Title VII claim is            







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