Anthony and Esther Sicari - Page 6




                                        - 6 -                                         
          their petition.  See Sicari v. Commissioner, 136 F.3d 925 (2d               
          Cir. 1998), (citing Pugsley v. Commissioner, 749 F.2d 691, 692-             
          693 (11th Cir. 1985)); see also Frieling v. Commissioner, 81 T.C.           
          42, 53 (1983).  There is a strong presumption in the law that a             
          properly addressed letter will be delivered, or offered for                 
          delivery, to the addressee.  See Hoffenberg v. Commissioner, 905            
          F.2d 665, 666 (2d Cir. 1990), affg. T.C. Memo. 1989-676; Mulder             
          v. Commissioner, 855 F.2d 208, 212 (5th Cir. 1988), revg. T.C.              
          Memo. 1987-363; Zenco Engineering Corp. v. Commissioner, 75 T.C.            
          318, 323 (1980), affd. 673 F.2d 1332 (7th Cir. 1981).  This                 
          presumption can be rebutted with a showing of postal mishandling.           
          See Mulder v. Commissioner, supra (lack of return receipt for               
          deficiency notice indicates Postal Service mishandled the                   
          notice); Estate of McKaig v. Commissioner, 51 T.C. 331 (1968)               
          (envelope was diverted by the  Post Office); Violette v.                    
          Commissioner, T.C. Memo. 1994-173 (envelope with notation                   
          indicating "First Notice, 1-30-83", which preceded issuance of              
          the notice of deficiency dated 01-27-86, "suggests a lack of                
          attention to detail that we are unwilling to overlook under such            
          circumstances".)  Here we must determine whether, given the                 
          strong presumption of delivery, there was actual delivery of the            
          notice of deficiency.                                                       
               Although the envelope containing the notice of deficiency              
          was received by the Gardiner Post Office and was treated by the             






Page:  Previous  1  2  3  4  5  6  7  8  9  Next

Last modified: May 25, 2011