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When the Commissioner’s records do not show receipt of a
return and the taxpayer cannot provide any documentary evidence
of the filing of a tax return, this Court may under certain
circumstances, accept the credible testimony of witnesses
regarding the preparation and mailing of the document. See
Estate of Wood v. Commissioner, 92 T.C. 793, 796-798 (1989)
(testimony of postal employee who affixed postmark), affd. 909
F.2d 1155 (8th Cir. 1990); Mitchell Offset Plate Serv., Inc. v.
Commissioner, 53 T.C. 235, 239-240 (1969) (testimony of
corporation’s shareholders and its accountants). However,
petitioner’s testimony regarding his likely actions, or habit
regarding mailing returns, is not sufficient. See Longazel v.
Commissioner, T.C. Memo. 1994-487; Duralia v. Commissioner, T.C.
Memo. 1994-269.
In this case, petitioner’s testimony does not establish that
he properly mailed his 1993 return by placing the return in an
envelope, properly addressing the envelope, stamping it, and
placing it in the mail. See Longazel v. Commissioner, supra. In
fact, petitioner’s contention that he filed his return timely is
belied by his failure to explain adequately why he did not
contact respondent with respect to the refund he claimed on his
allegedly timely filed 1993 return.
Having failed to establish a timely filing, petitioner is
liable for the addition to tax under section 6651(a)(1) for 1993.
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Last modified: May 25, 2011