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whether the envelope was mailed in accordance with this
subdivision shall be determined solely by applying the
rule of (a) of this subdivision. [Emphasis added.]
Mr. Coy testified that he placed petitioner’s return in the
mail between 11 p.m. and midnight. Petitioner presented no
evidence that this was before the last collection for that
mailbox. Petitioner presented no evidence as to a delay in the
transmission of the mail. Petitioner presented no evidence as to
the cause of a delay. Petitioner has failed to meet the
requirements of the regulation. See Fishman v. Commissioner, 420
F.2d 491, 492 (2d Cir. 1970), affg. 51 T.C. 869 (1969); cf. Jones
v. Commissioner, T.C. Memo. 1998-197 (the taxpayer met
requirements of non-U.S.-postmark regulation when evidence
established, in part, that he deposited the envelope in the mail
before the last collection).
Petitioner argues that Estate of Wood v. Commissioner, 909
F.2d 1155 (8th Cir. 1990), affg. 92 T.C. 793 (1989), and not the
regulation, controls this issue. In Estate of Wood, the Court of
Appeals for the Eighth Circuit, the court to which an appeal of
this case would lie, discussed section 7502 in the situation
where the taxpayer’s return was not received by the IRS.
Petitioner’s reliance on Estate of Wood is misplaced. The
presumption of delivery discussed in Estate of Wood is raised
only when a timely mailing occurs. As petitioner’s return was
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