Benigno Antonio Gasparutti - Page 13

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          Revenue Service never received the request and that petitioner’s            
          tax return was not timely filed.                                            
               Section 6651(a)(1) provides that if a taxpayer fails to file           
          a return by its due date, including extensions of time for                  
          filing, there shall be an addition to tax equal to 5 percent of             
          the tax required to be shown on the return for each month the               
          failure to file continues, not to exceed 25 percent.  The                   
          addition to tax under section 6651(a) shall not apply, however,             
          if the taxpayer can show that the failure to timely file the                
          return was due to reasonable cause and not willful neglect.  Sec.           
               Section 7502(a) provides that a return or other document is            
          deemed timely filed on the date of the postmark on the envelope             
          or the date of a receipt is issued by the United States Post                
          Office for either certified or registered mail.  Sec. 7502(a),              
          (c).  The Court of Appeals for the Ninth Circuit, however, to               
          which this case is appealable, concluded that extrinsic evidence            
          other than a postmark or postal receipt is admissible to prove              
          timely mailing.  See Anderson v. United States, 966 F.2d 487 (9th           
          Cir. 1992) (evidence that taxpayer saw the postal clerk stamp the           
          envelope with a postmark and place it in a mailing pouch                    
          admitted).  Petitioner did not testify nor produce any evidence             
          with regards to the steps he took to mail his extension request.            
          Therefore, on this record we must conclude that petitioner did              

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