J. Leslie James - Page 10




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               Petitioner relies on Hiner v. Commissioner, T.C. Memo. 1993-           
          608, where we said:                                                         
                    Proof of mailing requires some proof that the                     
               return was placed in an envelope that was properly                     
               addressed, stamped, and placed in the mail. * * *                      
          Petitioner contends that he satisfied the legal standard stated             
          in Hiner because Ball prepared his 1993 tax return and gave him a           
          properly addressed envelope with prepaid postage.                           
               Petitioner erroneously relies on Hiner.  We held in Hiner              
          that the taxpayer did not prove that he mailed the return at                
          issue.  The taxpayer in Hiner testified about his tax return                
          filing practices and that he believed he timely filed the return            
          at issue.  Here, petitioner's testimony is unpersuasive like that           
          of the taxpayer in Hiner.                                                   
               Petitioner contends that he conservatively estimated and               
          prepaid taxes due, and that this shows that he filed his 1993               
          return before March 24, 1997.  We disagree.  Paying estimated tax           
          is not evidence that petitioner filed a return for 1993.                    
               Petitioner contends that respondent has the burden of                  
          proving that he did not file a 1993 return before April 15, 1997.           
          We disagree.  Petitioner bears the burden of proving that he                
          filed his 1993 return.  Rule 142(a).                                        











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