James C. Weachock - Page 4




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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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