- 52 - 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.Page: Previous 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 Next
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