Donna M. Bokman - Page 7




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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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