Fred Henry - Page 52




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          date postmarked on the envelope in which petitioner's 1994 tax               
          return was delivered to the Service is October 17, 1995, and that            
          date is after the date on which that return was required to be               
          filed.                                                                       
               On the record before us, we find that petitioner has failed             
          to establish that he timely filed his 1994 tax return.  On that              
          record, we further find that petitioner is liable for 1994 for               
          the addition to tax under section 6651(a)(1).5                               
          Accuracy-Related Penalty Under Section 6662(a)--1994                         
               Section 6662(a) imposes an accuracy-related penalty equal to            
          20 percent of the underpayment of tax resulting from a sub-                  
          stantial understatement of income tax.  An understatement is                 
          equal to the excess of the amount of tax required to be shown in             


               5We note that Mr. Henry had it within his power to avoid the            
          problem presented in this case.  He testified that he mailed his             
          1994 tax return certified mail because his accountant "always                
          wants it done certified mail."  Indeed, the copy of his 1994 tax             
          return that is in the record has typewritten at the top of it:               
          "CERTIFIED MAIL NO. Z 721 020 113".  If Mr. Henry had obtained               
          and introduced into evidence a receipt for the certified mailing             
          of his 1994 tax return which bore the actual date of the mailing             
          of that tax return, the date marked on any such receipt would                
          have been treated as the date of the U.S. postmark for purposes              
          of sec. 7502(a).  See sec. 7502(c)(2); sec. 301.7502-1(c)(2),                
          Proced. & Admin. Regs.  If that date were Oct. 16, 1995 (or an               
          earlier date), petitioner would have satisfied the requirement of            
          sec. 7502(a)(2)(A) that the U.S. postmark fall on or before the              
          date (as extended) on which his tax return was due.  Mr. Henry               
          either chose not to obtain a receipt for the certified mailing of            
          his 1994 tax return or he chose not to present at trial the                  
          receipt that he did obtain.  In either event, he appropriately               
          bears the risk that such inaction entails.                                   





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