- 10 -
exists, for purposes of section 6402(a), and that the fourth
amended return was properly mailed, creating a presumption of
delivery.
We need not address whether respondent must treat the third
and fourth amended returns as filed concurrently for purposes of
determining whether they had an overpayment pursuant to section
6402(a). We are not convinced that Mr. Clayton properly mailed
the fourth amended return. In the instant case, there can be no
presumption of delivery because of the absence of credible proof
of mailing. Leather v. Commissioner, T.C. Memo. 1991-534. Proof
of mailing requires some proof that the return was placed in an
envelope that was properly addressed, stamped, postmarked, and
placed in the mail. See Hiner v. Commissioner, T.C. Memo. 1993-
608.
The only direct evidence introduced by petitioners is Mr.
Clayton's self-serving statement that he properly addressed,
stamped, and mailed the third, fourth, and fifth amended returns.
A trier of fact is not bound to accept the self-serving testimony
of the parties in a case. United States v. Jimenez-Perez, 869
F.2d 9, 12 (1st Cir. 1989). Mr. Clayton did not supply details
to corroborate the mailings. For example, he could not remember
how many envelopes he used to mail the returns or how much
postage was affixed. Evidence of habit is not sufficient to
satisfy petitioners' burden of proof. See Hiner v. Commissioner,
supra. The statement of Mr. Wulff, petitioners' accountant,
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011