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were postmarked at the same point of origin by the
United States Post Office on the last date * * *
prescribed for filing the document. However, in case
the document is received after the time when a document
so mailed and so postmarked by the United States Post
Office would ordinarily be received, such document will
be treated as having been received at the time when a
document so mailed and so postmarked would ordinarily
be received, if the person who is required to file the
document establishes (i) that it was actually deposited
in the mail before the last collection of the mail from
the place of deposit which was postmarked (except for
the metered mail) by the United States Post Office on
or before the last date * * * prescribed for filing the
document, (ii) that the delay in receiving the document
was due to a delay in the transmission of the mail, and
(iii) the cause of such delay. * * *
Sec. 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.
Petitioner is making the unusual argument that her return
was not timely filed, despite the fact that respondent has
apparently treated it as timely in all respects. Respondent
argues that petitioner made prior representations that her return
was timely filed, and that “Petitioner should not be allowed to
choose whether or not her return was mailed timely based up[on]
which scenario is to her benefit at that particular moment.” We
disagree. Petitioner’s ability to rely on the fact that her
return was filed late to escape the unintended election is
admittedly fortuitous for her, but cannot be set aside merely for
that reason.
The regulation quoted above is written under the assumption
that the taxpayer desires to show that a return was timely filed.
Reading the regulation in light of petitioner’s situation leads
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Last modified: May 25, 2011