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We disagree with petitioners that respondent’s failure to
produce the envelope in which respondent received their 1997 tax
return means as a matter of law that we must decide this case for
them. In order to reach their desired end, petitioners rely
erroneously on Lewis v. United States, 144 F.3d 1220 (9th Cir.
1998), and Anderson v. United States, 966 F.2d 487 (9th Cir.
1992).5 In each of those cases, the taxpayer produced credible
evidence of the date of mailing of the document in question.
Here, by contrast, we do not find that Mr. Huff testified
credibly that he mailed petitioners’ 1997 Form 1040 timely.
Because respondent has failed to produce the envelope
containing petitioners’ return, we decide this case as if the
postmark were missing; thus, petitioners may rely upon extrinsic
evidence to prove that the postmark, if present, would have been
timely. See Jacobson v. Commissioner, 73 T.C. 610, 615, 616
(1979). The only evidence petitioners introduced as to this
5 We understand petitioners to argue that we should decide
this case by following the jurisprudence of the Court of Appeals
for the Ninth Circuit. While we generally follow a decision
squarely in point of a circuit in which a case is appealable, see
Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985
(10th Cir. 1971), absent the parties’ stipulation to the
contrary, an appeal of this case lies in the Fifth Circuit; i.e.,
the circuit in which petitioners resided when they filed their
petition with this Court, sec. 7482(b)(1)(A) and (2). In any
event, our decision would be the same whether appeal lay to the
Court of Appeals for the Fifth Circuit or to the Court of Appeals
for the Ninth Circuit.
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