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v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513
(10th Cir. 1947).
The thrust of petitioners’ argument is that they must
prevail because respondent has not produced the envelope in which
respondent received their 1997 tax return. Petitioners note that
respondent acknowledges that respondent lost or destroyed this
envelope and that respondent’s witness, an employee of
respondent, testified that respondent attaches to all late filed
returns the envelope in which the return was received.
Petitioners assert that the envelope, by its postmark, would have
confirmed Mr. Huff’s testimony that he mailed petitioners’ 1997
tax return to respondent on April 15, 1998, that section 7502
would then treat the postmark date as the date of filing,4 and
that the period of limitations under section 6501 would then be
shown to have run before respondent issued the subject notice of
deficiency to them. As petitioners see it, section 7502 “imparts
upon respondent the burden of preserving and producing the
envelope since * * * the envelope is the sole exclusive evidence
on the issue of timely mailing/timely filing.”
4 Sec. 7502(a) provides that a return timely mailed as
evidenced by a U.S. postmark is deemed timely filed even though
delivered to the Commissioner after the due date. When a return
is mailed to the Commissioner after the due date, the return is
considered filed when the Commissioner receives it. Emmons v.
Commissioner, 92 T.C. 342, 346-347 (1989), affd. 898 F.2d 50 (5th
Cir. 1990).
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