Albert James Lawless - Page 6

                                        - 5 -                                         
          to respondent.  Robinson v. Commissioner, 57 T.C. 735, 737                  
          (1972).  The burden of proof, i.e., the burden of ultimate                  
          persuasion, however, always remains with the party who pleads               
          that the assessment is barred by the statute of limitations.                
          Adler v. Commissioner, 85 T.C. 535, 540 (1985).                             
               Petitioner contends that he filed his return on September 3,           
          1999, and that the period of limitations ordinarily would have              
          expired on September 3, 2002.  Petitioner testified at trial                
          that, as a matter of personal habit, on the night he completes a            
          return, he signs and dates it, he has his wife sign and date it,            
          he makes a copy of it at the copy store, and then mails it at the           
          local post office.  With regard to his 1998 return, petitioner              
          asserts that he and his wife signed it on September 3, 1999, that           
          he made a copy of it, and that he mailed it at the local post               
          office by regular mail on the same day.  Petitioner further                 
          asserts that he learned that respondent did not receive his                 
          return only when respondent’s Memphis Service Center contacted              
          him in the spring of 2003, at which time petitioner mailed                  
          respondent a copy of his return.5  In contrast, respondent’s                
          records show that respondent first received and filed                       
          petitioner’s 1998 return on July 10, 2003.                                  



               5  We find it remarkable that petitioner never contacted               
          respondent regarding the refund he claimed on the return                    
          allegedly submitted in September 1999.                                      





Page:  Previous  1  2  3  4  5  6  7  8  9  Next

Last modified: May 25, 2011