- 10 - 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 isPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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